Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Tuesday, September 20, 2016
I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers. Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.
One of the practical lessons, however, is that each banking institution does it differently when responding to concerns. For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question. The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.
Along this line, I recently received news of a timely CLE program. The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania. The Pennsylvania Bankers Association is co-hosting the program.
Hon. Robin L. Wiessmann
Leonidas Pandeladis, Esq.
Jeffrey P. Ehrlich, Esq.
Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC
The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess."
September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Friday, September 16, 2016
Jeffrey Skatoff, Esq. sent me a link to his firm's recent blog post (written by an associate) about a Florida appellate case concerning capacity to sign a deed. I thought this was an interesting case, and wanted to share it with you. Here is the post, Partially Incapacitated Ward Makes Valid Deed
When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian. That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian. Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened.
Recently, Florida’s Third District was called upon to review a trial court’s judgment invalidating a deed executed by a ward in Marcinkewicz v. Quattrocchi, 2016 Fla. App. LEXIS 13403. The facts in Marcinkewicz were as follows: The Ward’s son moved into her home in 2007. The son maintained that he had reached an understanding with his mother that she would leave the home to him upon her death in exchange for his agreeing to care for her. In 2009, the Ward moved into the home of her daughter and son-in-law. A year later, the Ward was declared incapacitated and her daughter became guardian of her person and property. Two years later, the guardianship over the Ward’s property was dissolved but a limited guardianship over her person remained. In 2013, the Ward visited her longtime attorney and executed a deed transferring her home to the son-in-law.
Upon receiving the deed, the son-in-law filed suit to eject the son from the property. The son counter-sued to invalidate the deed and for other relief. The trial court found that the Ward lacked capacity to execute the deed and that, as a result, the deed was void. The trial court further found that because the deed was void, the Ward still owned the property and the son had to vacate the property.
The Third District reversed the trial court’s finding that the deed was void but affirmed its ruling that the son had no rights in the property. The appellate court began by noting that the validity of the document is presumed and that this presumption can only be overcome with “clear, strong and convincing evidence." (quoting Espriella v. Delvalle, 844 So. 2d 674, 676 (Fla. 3d DCA 2003) (internal citations omitted). The appellate court noted that the trial court erred in assigning the burden of proving the deed’s validity to the son-in-law/grantee when it was the son who should have had to produce evidence in support of a finding that the Ward lacked capacity to execute the deed. Because the son failed to produce any evidence that the Ward lacked capacity at the time she executed the deed, the trial court’s finding was without evidentiary support. Because the deed was valid, the son had no rights in the property, equitable or otherwise. Accordingly, the trial court’s order that the son vacate the premises was upheld.
Friday, August 26, 2016
The long-term care industry depends hugely on the services of "nursing assistants," also known as NAs, who provide basic but important care for residents or patients under the direction of nursing staff (who, in turn, are usually Licensed Practical Nurses or Registered Nurses). As the U.S.Department of Labor describes, NAs typically perform duties such as changing linens, feeding, bathing, dressing, and grooming of individuals. They may also transfer or transport residents and patients. Employers may use other job titles for NAs, such as nursing care attendants, nursing aides, and nursing attendants. However, the Department of Labor makes a distinction between NAs and other key players in long-term care, including "home health aides," "orderlies," "personal care aides" and "psychiatric aides."
According to DOL statistics, the top employers of NAs include skilled nursing facilities (37% of NAs), continuing care retirement communities and assisted living facilities (together employing some 18% of NAs), and hospitals and home care agencies, which each employ about 6% of the NA workforce.
For many years, states have offered licensing for nursing assistants. The designation of CNA or "certified nursing assistant" meant that the nursing assistant had satisfied a minimum educational standard and had successfully passed a state exam. As another key protection for vulnerable consumers, CNAs had to pass background checks, involving fingerprints and criminal history searches.
In Arizona, however, now I'm hearing a new label: LNAs or Licensed Nursing Assistants. The Arizona Board of Nursing continues to license CNAs, but now it is offers the designation of Licensed Nursing Assistants. What's the difference? Frankly, not much, at least in terms of skill levels. Then why the change?
In Arizona, CNAs and LNAs have the same educational requirements, and must pass the same test and satisfy the same work credits. But, as of July 1, 2016, individuals seeking the LNA designation will be required to pay the state a fee to cover their mandatory background checks, including fingerprinting. CNAs, however, will no longer be required to undergo background checks or fingerprinting.
What is this about? Arizona is trying to save money. It seems that state and federal laws prohibit state authorities from mandating that CNA candidates cover the cost for their own background checks. In other words, if the candidate showed financial need in the application process, the state was required to pick up the costs for any background checks. Let's remember that the average wages of CNAs are relatively low -- the national mean is less than $30,000 per year. Presumably that is the reason behind the older laws limiting how much states can charge CNA applicants for their own background checks. By creating a new designation, LNA, Arizona takes the position it avoids the federal restriction.
But, what about the public? Will the public understand that CNAs licensed after July 1, 2016 will not be subject to fingerprinting and background checks? Responsible employers would, presumably, require such checks or limit their hires to LNAs. At least, let's hope so.
I also learned that apparently Arizona does not require "continuing" education for either CNAs or LNAs. (Again, you would hope that responsible employers would either provide or require such education.) Arizona used to require a minimum of 120 hours every 2 years of what are, in essence, "job credits" -- i.e., proof of employment in an NA position -- to maintain the CNA license. Recently, however, Arizona diluted that requirement to just 8 hours every two years for both CNAs and LNAs.
Arizona does have a useful website where current or prospective employers, including families, can check the licensing status of CNAs or LNAs. The website is searchable by name or license number, and shows whether an applicant has failed the entrance exam, or has withdrawn an application or lost the license.
Are other states creating this LNA designation as a "workaround" (loophole?) for financing background checks for CNAs? Let us know!
August 26, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, August 23, 2016
Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31
Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.
These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation. It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.
Monday, August 15, 2016
In July, I drove some 2500 miles, from Pennsylvania to Arizona, to begin an exciting sabbatical opportunity. I enjoy this drive (especially since I tend to do it fairly rarely, perhaps once every seven years). I frequently visit friends along the way, and this summer I was struck by how many friends had saved up tough elder law stories for me.
A theme emerged from their stories. They would tell me, "I have an aging friend (or sometimes a family member or neighbor) who is in serious danger of physical or financial harm, but refuses to cooperate with reasonable plans to solve the problems. What are my options to help this person I care about?"
In one instance, it seemed clear the at-risk individual was affected by some level of cognitive impairment. But how to know for sure? Was the refusal to cooperate with a "better plan" the product of a sound, if somewhat eccentric mind? A neurocognitive assessment seemed warranted. We tried to arrange one. But the earliest appointment available was more than 60 days away and the potential for harm was immediate.
Thus, it was with great interest I read a preview of an article in the upcoming issue of the ABA publication, Bifocal. Professors Marshall Kapp, Shenifa Taite and Gregory Turner outline "Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other." They are writing about a critical need for Medical-Legal Partnerships designed specifically to assist older persons and their family members. For example, on the topic of "self-neglect," the authors explain:
Mistreatment of older persons by others is a serious problem. Both the medical and legal conundrums became more complicated, and thus even more amenable to interprofessional collaboration, when self-neglect is entailed. A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being regarding health care, hygiene, nutrition, and other matters. The majority of cases reported to APS agencies by health and social service professionals and family members are triggered by suspected self-neglect. The health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement, and even death.
In situations involving suspected elder self-neglect, the physician’s role is vital in recognizing the potential problem, characterizing the nature and seriousness of the risk posed, and trying to identify clinically and socially viable intervention strategies. Among other concerns, decisional capacity issues almost always arise in these cases. The physician may look to an attorney for advice about legal reporting requirements or options, as well as the legal boundaries within which interventions may be designed and implemented in a manner that best respects the older person’s dignity and autonomy while protecting the vulnerable at-risk individual from undue foreseeable, preventable self-generated harm.
A growing number of law schools (including Penn State's Dickinson Law) have established Medical-Legal Partnership Clinics, where the collaborative relationship between attorneys and physicians is established in advance of need by clients. Often such clinics focus on younger clients, especially children. Elder-specific services are an important subset of the services that can be provided in a timely and professional setting. For more, read the full Bifocal article published in the-August 2016 issue -- and ask whether such services are available in your community.
August 15, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, Legal Practice/Practice Management | Permalink | Comments (0)
Wednesday, August 3, 2016
Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings. The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:
Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him. DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.
"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.
The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:
In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes. The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.
Spokespeople from both the for-profit and nonprofit segments of the industry are quoted in the article and they push back against the investigators' conclusions.
I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer. My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots.
The trade-off for "no restraints" can be higher risk. Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team. For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool. I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.
None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary. For more, read "Failing the Frail." Our thanks to Doug for sharing this good article.
August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)
Thursday, July 14, 2016
My local paper ran a story recently about a vulnerable adult who was neglected to death. 66-year-old Gulfport woman dead after police say she was neglected by caretakers reports that "[t]he caretakers told police they moved out of the apartment eight to 10 days before the woman's death. That left her alone, police said, with little ability to care for herself." A follow up story, Gulfport police: 66-year-old woman left to die in squalor and heat, reports that the caregivers went back daily to check on her, saw her getting worse, but took no action to help her. Both caregivers were jailed and "facing a felony charge of abuse or neglect of an aged or disabled person."
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
We know anyone can be a victim of elder abuse. We also know anyone can be a perpetrator. With that in mind, the results of a study published in the Annals of Internal Medicine might be surprising to you.... or not. The study found that in about 20% of the cases, the perpetrator was another resident. The Prevalence of Resident-to-Resident Elder Mistreatment in Nursing HomesResident-to-Resident Elder Mistreatment in Nursing Homes explained that "[r]esident-to-resident elder mistreatment (R-REM) in nursing homes can cause physical and psychological injury and death, yet its prevalence remains unknown." The full article requires a subscription but the summary available offers this information:
Results: 407 of 2011 residents experienced at least 1 R-REM event; the total 1-month prevalence was 20.2% (95% CI, 18.1% to 22.5%). The most common forms were verbal (9.1% [CI, 7.7% to 10.8%]), other (such as invasion of privacy or menacing gestures) (5.3% [CI, 4.4% to 6.4%]), physical (5.2% [CI, 4.1% to 6.5%]), and sexual (0.6% [CI, 0.3% to 1.1%]). Several clinical and contextual factors (for example, lower versus severe levels of cognitive impairment, residing on a dementia unit, and higher nurse aide caseload) were associated with higher estimated rates of R-REM...
Conclusion: R-REM in nursing homes is highly prevalent. Verbal R-REM is most common, but physical mistreatment also occurs frequently. Because R-REM can cause injury or death, strategies are urgently needed to better understand its causes so that prevention strategies can be developed.
There was a webinar on the topic earlier in the spring. Slides from the webinar are available here. There is also an abstract from the 2014 report available on the National Criminal Justice Reference Service and the report is here.
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)
We've previously blogged about the happenings in the case and life of Sumner Redstone. Although one lawsuit was dismissed, it doesn't appear that is the end of the matter. The New York Times ran an article on June 2, 2016, In Sumner Redstone Affair, His Decline Upends Estate Planning. Although the focus of the story is Mr. Redstone's situation, the story notes that this happens perhaps more than we think.
As Americans live longer and more families are forced to cope with common late-in-life issues like dementia, the problem is getting worse. “It’s a huge issue nationally as the elderly population grows and their minds start to falter,” [one attorney interviewed for the story] said. “I’ve seen charities coming after people for multiple gifts: Sometimes these donors don’t remember that they already gave the previous week. Romantic partners, caregivers who take advantage of the elderly — we’re seeing it all.”
Elderly people may be especially susceptible to the influence of people who happen to be around them during their waning days.
Professor David English (full disclosure, co-author and friend) "a professor of trusts and estates at the University of Missouri School of Law and former chairman of the American Bar Association’s commission on law and aging" said
This is an issue for lots of people of even modest wealth... [and] the most common approach is the creation of a trust, either revocable (which means it can later be changed) or irrevocable, that anticipates such a problem and defines what the creator of the trust means by incapacity. This could be a much less rigorous standard than is typically applied by courts... The document should define the meaning of incapacity and, more importantly, indicate who determines incapacity....
The article goes on to examine the importance of trusts that are carefully well-drafted to address issues such as those faced in this case. However, "sometimes no amount of legal advice can save people from an unwillingness to face their own mortality and cede control while still in full control of their faculties."
Thursday, June 16, 2016
A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia. One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members. The court found that he was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris." Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.
The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid. See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.
That is the "befriender" side of the issues. However, the court also addressed the possibility of a will executed in 2013. The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity. That plan backfired.
The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.
The court wrote:
Tuesday, June 14, 2016
In Florida, the number of verified cases of elder abuse and neglect has climbed 74 percent since 2011, according to the Florida Department of Children and Families. In 2015, the statewide total was 2,525.
More than 800 people have been charged with elder abuse and neglect in Florida in the past five years, according to the Office of State Courts Administrator. More than 370 have been convicted or sentenced.
The story also offers data on a nationwide basis and discusses the difficulties in prosecuting elder abuse cases, such as the victim's close ties to the perpetrator or cognition issues of the victim
The accompanying sidebar provides statistics, Elder Abuse in Florida by the Numbers for the past 5 years, broken down by verified cases of elder abuse or neglect and criminal elder abuse or neglect.
Friday, June 10, 2016
Filial Friday: Georgia Supreme Court Rules that No Equitable "Right of Access" is Created by Filial Support Law
Adult daughter Tamara Williford filed a petition for equitable relief in February 2015, seeking a Georgia court's order that her father's current wife must allow her access to her father. Williford alleged that her father, Tommy Brown, was in poor physical health, unable to leave his home, but in good mental condition. She said she had talked with him regularly by telephone and in person, until his wife prevented her from doing so.
Apparently Mrs. Brown, Tommy's wife, was named as the only defendant in the lawsuit, and responded by denying Williford was a biological child, denying her husband was in poor health, and denying that he wanted to see Williford.
In June 2016, the trial court dismissed Williford's petition, and she took a timely appeal to the Georgia Supreme Court. Oral argument was held in February 2016.
In Williford v. Brown decided May 9, 2016, the Georgia Supreme Court (pictured above) unanimously affirmed the dismissal, finding that there was no statutory or other legal grounds alleged that would support the "equitable remedy" sought by Ms. Williford. Specifically, the court rejected the argument made on appeal that Georgia's version of a filial support law, OCGA Section 36-12-3, provided grounds for relief. That statute says:
The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.
The court concluded that this section "does not purport to confer on adult children a right to unrestrained visitation" with parents. "Moreover, Ms. Williford did not allege in her petition that Mr. Brown is a 'pauper,' much less that she believes that Hart County has or will ever have to maintain him at county expenses and then pursue an action against her."
In a footnote to the ruling, the court observes that the daughter "did not alleged and does not claim on appeal" that the wife prevented her husband "from leaving his home or communicate with persons other than Ms. Williford." Therefore, the court said it was not necessary to address whether a theory of "general habeas corpus" where a person was allegedly held "incommunicado illegally and against his will."
This seems like a very sad case. One Georgia elder law attorney suggests that "if the ruling in this case disturbs you, then perhaps it is a good time to call your local legislator."
June 10, 2016 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, June 7, 2016
We've reported earlier, including here and here, about recent financial and management issues at a Tampa, Florida continuing care retirement community that operates under the name of University Village. The latest event is the May 31, 2016 order of an administrative law judge that would uphold the decision of the Florida Agency for Health Care Administration to revoke the license for operation of a skilled nursing facility at University Village..
Many of the concerns appear to focus on the alleged action (or inaction) of an individual, John Bartle, who is described as holding various titles in the company that controls the CCRC's operations. At one point, the Administrative Law Judge made clear his view on Bartle's testimony:
The letter and the email reveal Mr. Bartle’s view that deadlines established by regulatory authorities performing the duties imposed on them for the protection of the public by the Legislature are not significant. This disregard, if not disdain, for the statutes and rules governing nursing home services and the enforcement of them is patent in the letter and e-mail, Mr. Bartle’s dismissive testimony about the shifting relationships of the various entities, his demeanor when testifying, and his evasive manner of answering questions when testifying. For these reasons, Mr. Bartle’s denial of the March 3 letter and much of his uncorroborated testimony are not accepted as credible.
My thanks to Karen Miller, Esq. for sharing this unusual ruling.
Monday, June 6, 2016
The National Consumer Law Center, working in cooperation with the Administration for Community Living and the National Legal Resource Center will host a free webinar on Financial Frauds and Scams Against Elders: Government Responses and Resources on Wednesday, June 15, 2016 from 2 to 3:30 p.m. (Eastern Time). The presenters are Naomi Karp, Consumer Financial Protection Bureau and David Kirkman, Consumer Protection Division for the North Carolina Department of Justice.
This webinar will examine the fraud and scams aimed at elders, the traits that make elders vulnerable, and state and local government responses. This webinar will also discuss the Consumer Financial Protection Bureau's (CFPB) recent Advisory and Recommendations to financial institutions on preventing and responding to financial exploitation, as well as other CFPB resources available to attorneys, advocates and service providers.
On-line registration is required, but it looks like you can register at the last minute, although there is a maximum limit on the webinar -- 3,000 attendees!
Tuesday, May 31, 2016
The annual American Society on Aging (ASA) conference is scheduled for March 20-24, 2017 in Chicago. The planning committee is now accepting proposals to present at the conference. For more information or to submit a proposal, click here. The deadline for submitting a proposal is June 30, 2017.
May 31, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)
Monday, May 23, 2016
California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law
I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S. For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs. At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims. This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc. In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:
We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist. What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.
The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect. Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."
The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities. The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.
This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act.
Monday, May 9, 2016
The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney Abuse. The author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.
The article also covers actions when the agent misuses the DPOA. The article concludes
There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.
Thanks to the article's author, Michael J. Polk, for sending me the link to the article.
May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)