Friday, January 9, 2015
The American Bar Association's Commission on Domestic & Sexual Violence is teaming with the National Clearinghouse on Abuse in Later Life (NCALL) to host a 5-part FREE webinar series on "Abuse in Later Life." The target audience includes "civil attorneys, legal advocates and otherw who wish to gain a deeper understanding" of the topics.
The series takes place on Thursdays (mark your calendars!), starting on January 22, and includes the following modules:
- Module One: Abuse in Later Life: An Overview
Thursday, January 22, 2015, 2:00-3:00 pm E.S.T.
- Module Two: Forming the Relationship with Your Client: Client communication, interview skills, and confidentiality/mandatory reporting concerns
Thursday, February 5, 2015, 2:00-3:00 pm E.S.T.
- Module Three: Client Goal-Setting and Non-Litigation Responses: Client collaboration, developing client priorities and non-litigation responses to ALL
Thursday, February 19, 2015, 2:00-3:00 pm E.S.T.
- Module Four: Legal Resolutions and Remedies in ALL cases: Protective orders, Guardianships, Power of Attorney agreements, end of life health care decision-making and working with the criminal justice system
Thursday, March 5, 2015, 2:00-3:00 pm E.S.T.
- Module Five: Bringing the Case – Trial Skills: Protection of evidence and assets, motion practice, witness testimony methods and supports, direct and cross-examination and application of the Crawford decision in ALL cases
Thursday, March 19, 2015, 2:00-3:00 pm E.S.T.
For more information, including registration, go here.
Thursday, January 8, 2015
Check out this new report on SSA's Rep Payee system. The Administrative Conference of the United States released the report, SSA Representative Payee: Survey of State Guardianship Laws and Court Practices. ("The Administrative Conference of the United States (ACUS) is an independent federal agency dedicated to improving federal administrative processes through consensus-driven applied research, and provision of non-partisan expert advice and recommendations to federal agencies." (report at page 1)).
This report was done pursuant to a request in 2014 by SSA to ACUS to learn more about various state guardianship laws and the court practices. ACUS did this by:
(1) carrying out legal research on state laws nationwide governing guardian selection, monitoring, and sanctions; (2) conducting a survey that captures information on state court practices and procedures relating to guardianships, and analyzing the results of the survey; ... and (3) conducting interviews with up to nine state organizations or governmental entities with expertise in, or that provides services related to, adult protective services or foster care in order to evaluate their respective practices related to guardianship and benefits monitoring.
The report includes key findings, trends and "common themes and observations." The summary of findings runs for 4 pages and addresses a variety of topics, including guardian selection, sanctions and removals, court monitoring, outreach and interaction, and caseloads.
The key findings section recognizes the variations amongst the states, but still offers useful information
The study presented challenges because a number of identified problems are local and unique to a particular court within a particular state, or with a specific SSA office. Problems experienced by courts in major cities may be quite different than problems experienced in small or rural courts... The strategy behind this project was to cast a broad net and seek a large respondent pool to collect a dataset that would provide a rich description of the issues... The fact that there are over 850 court responses and over 140 guardian responses means that we can glean a lot of useful information in terms of the nature of the problems, even if some of those problems are localized. The results of this study should be a good starting point for SSA; and the agency should be able to assess and act on any serious problems, albeit localized ones.
The report identifies 5 common areas of concern, including inconsistent electronic information and inconsistency in dealing with various SSA offices, variations in e-filing procedures, and the lack of a nationwide database of guardians or guardianship cases.
We recently heard from Emily Crim, a Public Interest Fellow working in Boston with the "Elder Abuse Prevention Project" under the auspices of Greater Boston Legal Services. The project's important mission, now more than a year in development, is to "offer legal advice and representation of victims, provide training to care providers, community members, and seniors, as well as to advocate for systemic reform and build local networks that can prevent and intervene in cases of abuse." As part of this Project, they have recently launched a great new "Project Blog" to help get the word out.
Here's a link to their most recent post on "LGBT Elder Abuse: An Invisible Problem within an Invisible Community." Here's a link to the Project website too. Certainly the topics addressed here are relevant beyond the Greater Boston area!
Thanks, Emily, for reading our Elder Law Prof Blog and for sharing your latest news!
Wednesday, January 7, 2015
The ABA Commission on Law and Aging has posted its 2014 State Adult Guardianship Legislative Update at http://www.americanbar.org/groups/law_aging/resources/guardianship_law_practice.html. The update describes 18 laws passed in 15 states during the year.
If you are aware of others that were enacted, please contact Erica Wood at the ABA.
Saturday, December 20, 2014
Here is a link to a podcast for a Smart Talk program from WITF Public Radio, where Zygmont Pines, Esq., Court Administrator for the Commonwealth of Pennsylvania and I were invited to talk about quite a few "hot" topics from Pennsylvania Supreme Court's Elder Law Task Force. The Task Force released its big Report and Recommendations last month.
The topics strike me as quite universal, not Pennsylvania specific. If you make it to the last few minutes (or skip ahead), there is an especially poignant moment with a family caregiver, who tells a real life story that will strike a chord with many.
December 20, 2014 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (1) | TrackBack (0)
Friday, December 19, 2014
Starting on January 1, 2015, Pennsylvanians have new rules that apply in order to create effective Powers of Attorney (POAs). The changes are wrought by Act 95 of 2014, and were stimulated in large part by a case decided in 2010 that invalidated a POA that had been executed under suspicious circumstances. We discussed the background here.
There are important, and sometimes subtle options for principals to consider in accepting or rejecting the "default rules" in the Act. All of the changes were intended to provide better protections for principals from abuse by agents, but not all principals will want those protections, particularly if it means more risk of third-party intervention or oversight. For an up-to-date and thoughtful summary of the changes and implications, read ElderLawGuy Jeff Marshall's recent blog post on "What You Need to Know."
For attorneys seeking the latest information on POA drafting and best practices, the Pennsylvania Bar Institute is offering several CLE programs around the state in January 2015.
Tuesday, December 16, 2014
We reported earlier on the brazen attitude and extraodinary thefts by a Pennsylvania estate and long-term care planning attorney. Wendy Weikal-Beauchat, age 47, pled guilty to a series of crimes and on December 16, 2014 she was sentenced to 15 years in prison. The sentencing judge ordered more than $6 million in restitution and the same amount in forefeitures. In ordering her immediate surrender at the end of the hearing, U.S. District Judge John E. Jones III emphasized the betrayal of client trust that accompanied the now disbarred Gettysburg attorney's actions.
"Approximately 30 of Weikal-Beauchat's former clients attended the sentencing, 16 of which read statements to the court, the release states. Most emphasized the mental, as well as the financial, harm inflicted on them and their families by Weikal-Beauchat's fraud.
Weikal-Beauchat stole from clients who were members of the Great Depression and World War II generation and had undermined public trust in lawyers, said Judge John E. Jones III during sentencing. Jones said Weikal-beauchat's apology, which was presented in court for the first time Tuesday, was hollow, the release states."
Additional details from the Evening Sun news coverage are here.
Saturday, December 13, 2014
AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.
Here's the link to a podcast of the December 12, 2014 segment.
December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, December 12, 2014
One of my elder law practioner-friends, Julian Zweber, was called by scammers this week. Julian smelled a rat, and now he's working with the Ramsey County Sheriff's Dept. to track down the scammers. I understand from other colleagues that variations of the scam are is sweeping the country. It has been very effective in bilking seniors of a LOT of money.
Details on the Minneapolis/St. Paul version.
The Hennepin County Sheriff’s Office is warning residents about telephone scams.
Individuals are calling residents and telling them there is a warrant out for their arrest because of unpaid court fees or unpaid fines. The phone scammer tells residents that they will be arrested unless they provide credit card or payment information.
Police departments in the metro area also have received reports about phone scammers who tell residents that they owe back taxes. The phone scammers threaten that law enforcement officers will arrest residents who don’t provide payment information over the phone.
The IRS and the Minnesota Department of Revenue have recently issued alerts reminding people that their agencies do not call residents about tax issues. Instead, these agencies send letters to residents.
Nationally, there are a variety of different phone scams. Some of the con artists impersonate an IRS agent, a state revenue department representative, a Sheriff’s deputy, a police officer, or personnel from other federal law enforcement agencies.
The phone scams have resulted in identity theft, fraud, and unauthorized credit card use.
Never provide personal information or credit card numbers over the phone unless you know that the call is legitimate. People who receive a telephone call that appears suspicious, should NOT provide personal information and should instead call local law enforcement or call 911 to report the incident.
Do not rely on caller ID to verify the origin of a phone call. In some cases, calls from phone scammers will appear on a caller ID as originating from a law enforcement agency or government agency, when in reality the call is a hoax and a result of technology that manipulates caller ID. If you are uncertain about the identify of a caller; hang up the phone, locate the official phone number of the agency that called you, and call the agency directly.
Wednesday, December 3, 2014
Canada: New online program aims to help reduce financial abuse of seniors through education and awareness
Launch of Financial Abuse of Older Adults: Recognize, Review and Respond program marks end of Financial Literacy Month
In honour of November being Financial Literacy Month, Credit Union Central of Canada (CUCC) has partnered with Credit Union Central of Manitoba (CUCM) and Prevent Elder Abuse Manitoba (PEAM) – in collaboration with the Financial Consumer Agency of Canada – to launch a new online course: Financial Abuse of Older Adults: Recognize, Review and Respond. The purpose of this course is to help educate credit union staff about financial elder abuse and provide them with key information, including: how to identify incidences of elder abuse; how to mitigate the risks; community resources available; as well as the legal and ethical responsibilities of both the financial institution and the senior involved. Upon completion of the course, credit union employees will have the opportunity to share their knowledge with members of the community – especially with Canadian seniors –, to help them understand more about elder abuse and how to prevent it happening to them. Minister of State (Seniors), the Honourable Alice Wong; Minister of Healthy Living and Seniors (Manitoba), the Honourable Deanne Crothers; Lawrence Toet, MP (Elmwood-Transcona); Jane Rooney, Financial Literacy Leader; Martha Durdin, President and CEO of Credit Union Central of Canada, and Ted Richert, Vice President, Credit Union Central of Manitoba will make remarks. The program was written and developed by Tamlo International Inc. and will be distributed exclusively by CUSOURCE Credit Union Knowledge Network, a wholly owned subsidiary of Credit Union Central of Canada that provides learning and development solutions to the Canadian credit union system.
Source: Canada News Wire
Tuesday, December 2, 2014
Australia’s criminal laws must be reviewed in light of the low rate of prosecutions for elder abuse, according to a leading expert who has also called for the various power of attorney and guardianship laws at state level to be re-examined. Professor Wendy Lacey, Dean of Law at the University of South Australia told the Australian Association of Gerontology national conference on Wednesday that along with legislative reform, coroners needed to be educated about elder abuse and its prevalence. While there were mandatory reporting obligations around suspected physical and sexual abuse under the Aged Care Act, these only covered seniors living in residential aged care, and did not protect the majority of older people who were not accessing federally-funded services, she said.Professor Lacey, who is a co-convenor of the Australian Research Network on Law and Ageing, was last year appointed to the SA Minister for Health’s Steering Committee which reviewed the state’s framework for responding to elder abuse. She said that under the constitution, the Federal Parliament’s powers to address elder abuse were “virtually nil” with “almost no capacity to develop a comprehensive systemic framework.” Therefore, advocates needed to look the states, said Professor Lacey. “We can seek the support of the Commonwealth around funding and doing a national review around the prevalence and types of elder abuse, but from a legal and constitutional perspective we have to look to our state governments for the answer,” she told the Adelaide audience.
Sunday, November 30, 2014
Via The Diplomat:
The Chinese government has proposed a draft law against domestic violence – the first such law for China. The draft, published by the State Council’s Legislative Affairs Office, is open for public comment until December 25. The law will cover all forms of domestic violence, including spousal abuse, child abuse, and elder abuse. A full English translation of the draft is available from China Law Translate. Domestic violence, particularly spousal abuse, has gained more and more attention in China thanks to a number of high-profile cases. As Xinhua put it in an article on the new draft law, “Family violence has remained in the shadows for a long time in China, where the culture holds that family conflicts are embarrassing private matters. Only in recent years have the Chinese people begun to examine the issue.” The All-China Women’s Federation issued a firm statement in support of the draft law. “Domestic violence is not a family dispute, rather, it is aggression against people’s rights and should be resolved with legal measures,” the statement said. In an effort to further change the way domestic violence is viewed, the draft law exhorts Chinese media outlets to shape public opinion on the issue. Accordingly, the new law encourages and even requires social aid organizations, schools, and medical institutions to report cases of abuse to the authorities. Both social organizations and individuals should be empowered to “dissuade, prevent, and report physical and psychological abuse from within the victims’ family,” the law said.
Source/more: The Diplomat
Friday, November 28, 2014
In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes. The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.
The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.
The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute."
Several key facts supporting the conviction are described in the decision, including:
- Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
- The father retained control over the checkbook for the account.
- Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
- The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.
Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.
Monday, November 24, 2014
Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:
- imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
- clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
- clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
- clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status.
The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars." The comment window closed on November 3. 2014.
In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:
November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, November 16, 2014
In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. As the author, Maine elder law attorney Sally Wagley, explains,
"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."
Has the law been useful in Maine? Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect. She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."
For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."
Friday, November 7, 2014
Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.
Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.
Bloomberg Visual Data: Elder Care Sex Survey Finds Caregiviers Seeking More Training
The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review.
November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)
Thursday, October 30, 2014
Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.
To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case. For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers." The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death.
To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).
I can see this article providing a great platform for discussion, both among law students and practicing attorneys.
Sunday, October 26, 2014
As regular readers of the Elder Law Prof Blog may recognize, I reside and work squarely in a zone where "filial support claims" are more than just theoretical propositions. Pennsylvania continues to be Ground Zero for modern complications arising from use of a Colonial era law that permits adult children to be held liable for the cost of an indigent parent's long-term care.
The latest example is In re Skinner, 2014 WL 5033258, decided by Bankruptcy Judge Madeline Coleman in the Eastern District of Pennsylvania on October 8, 2014.
The issue is whether one sibling can prevent another sibling from "discharging" any obligation to pay an assisted living facility for their mother's care. Both brothers were sued by the facility, resulting in a default judgment against one brother (Thomas) for $32,225, who in turn sought discharge of that debt in bankruptcy court. Brother William, probably facing the prospect of picking up the full tab for his defaulting brother, initiated an adversary proceeding, seeking to prevent the discharge. The court concludes that Brother William "lacks standing" to prevent Brother Thomas' discharge of the debt to the assisted living facility.
In dismissing Brother William's claim, the Bankruptcy Judge addresses both the Uniform Fraudulent Transfer Act and Pennsylvania's filial support law. According to the opinion, Brother William alleges that Thomas used a Power of Attorney executed by their mother in 2007, to access her bank accounts in a "scheme [with his wife] to use the Mother's assets, including her interest in long-term care benefits, to fund approximately $85,000 of their personal expenses." However, the court concludes that even accepting the truth of allegations that "suggest that the Mother was injured by the [Thomas'] conduct, that conduct was directed at the Mother and her property. The conduct was not directed at [William]." The Bankruptcy Court also rejected any theory of "derivative standing."
October 26, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, September 29, 2014
The NYC Elder Abuse Center ran a post last week that listed the 10 top blogs from the past year. 10 Elder Justice Blogs to Inform & Inspire includes summaries as well as links to "ten great blogs from the July 2013 – June 2014 stellar blog collection that collectively discuss myriad elder justice issues – from elder abuse in popular culture to podcast interviews with leaders in the field." Check it out and make sure you haven't missed anything!
Tuesday, September 16, 2014
Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."
Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred. This particular disciplinary action has been a lo-o-o-o-ng-time coming.
Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities. Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling. He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of Voluntary Compliance.
The conduct, however, apparently did not stop. An undercover investigator was used to document continued problems. In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."
In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.
September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)