Thursday, November 28, 2013

On the Road Again: Law, Policy and Ageing in Northern Ireland

059Devolution, the process in the United Kingdom by which Scotland, Wales and Northern Ireland are enacting domestic laws and policies separate from the laws of England, has opened important opportunities to consider the needs of older persons. 

Over the Thanksgiving weekend, I'm in Northern Ireland, working with great colleagues at Queen's University Belfast, on two projects commissioned by the Commissioner of Older People Northern Ireland (COPNI).  One team is working on elder abuse and the other project focuses on social care, with each team employing comparative analysis from the U.S., Canada, Ireland, India and other nations in framing proposals for future laws or policies to be recommended for adoption in Northern Ireland. 

November 28, 2013 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing | Permalink | TrackBack (0)

Tuesday, November 26, 2013

Beware of Befrienders -- A New Hampshire Case Example

While working in Europe, I first heard the label "befrienders," as applied to people who work their way into the lives of disabled or elderly persons.  The relationship often starts with the befriender doing small, helpful tasks; over time, the helper gains trust that enables him or her to have a greater role in the elder's life, thus opening the door to exploitation of the person's diminishing powers of judgment, while gaining complete control over finances. 

On November 5, the New Hampshire Supreme Court affirmed convictions on nine of eleven criminal counts for "befriender" Karen Gagne, accused of stealing over $500,000 from a ninety year old woman in a retirement center. The case is State of New Hampshire v. Karen Gagne, 2013 WL 512499 (2013).   

I plan to write more in the future about the technical details of the crimes charged in this context, but one of the clear lessons from the history in this particular case is how much time it may take for the befriending pattern to develop and "ripen" into fraud that is recognized by third-parties.  For example, Karen Gagne's involvement with the victim spanned years: 

"The defendant met the victim in the 1980s when the defendant performed landscaping services at the victim's home. The two became friends and subsequently lived together as companions in the victim's home for at least one year until the victim asked the defendant to move out. In the summer of 2006, the defendant and the victim rekindled their friendship. The victim moved to Pleasant View Retirement Home (Pleasant View), and the defendant began driving the victim to doctors' appointments and nail appointments, and taking her to lunch. In addition, although the victim had previously had an accountant pay her larger bills, the defendant began handling the victim's bills, including payment of her rent at Pleasant View."

At some point, "helpful" friend Gagne began liquidating the elder woman's annuities or other property and borrowing additional money under the elder's name. 

The fact that Gagne was giving herself gifts might not have been discovered, except that by the fall of 2008, Gagne was no longer making regular rent payments to the retirement home.  She offered excuses, such as blaming a "grandson or nephew" for stealing money, and claimed that she, Gagne, was trying to "recover" the money in order to pay the victim's bills. By late 2009, the victim was so far behind in rental payments -- and the excuses had become so unbelievable -- that the facility's executive director contacted the Attorney General's office, thus leading to the criminal charges.

Having sat through trials of similar cases, and having read transcripts of other cases, I can just imagine how Gagne would try to justify her thefts, arguing that "her friend wanted her to have the money" to explain why the 90-year old woman had "signed" checks she wrote out for her.  In fact,  this "gift" argument actually worked as a defense to two of the criminal counts in the case, where the older woman had personal involvement in transactions.  Nonetheless, on the majority of criminal counts, the Supreme Court concluded "the defendant was not privileged to infringe upon the victim's interest" in joint accounts, nor was Gagne justified in misapplication of funds she was handling as a "financial representative" of the elder. 

Karen Gagne was originally sentenced to "an aggregate of 10 to 30 years in New Hampshire State Prison for Woman." It is not clear from the opinion whether remand on the overturn of two of the elevent counts would trigger a resentencing. 

New Hampshire, by the way, is the state that recently passed a new law, permitting long-term care facilities to sue "fiduciaries" who misuse assets of a resident, if that misuse results in "disqualification" of the resident for Medicaid, as we discussed earlier this month.   

November 26, 2013 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, November 21, 2013

A law professor abroad...

For the past several days, I’ve been in Korea at the invitation of Prof. Je Cheol Ung, who is Professor of Law at Hanyang University in Seoul.  I’ve had the opportunity to speak with Korean experts about Korean’s new guardianship law, teach first year law students a bit about elder law, and participate in an important conference sponsored by the Korea Association on Comparative Private Law on the implementation of the new law.  My hosts have been wonderful, and I’ve been deeply impressed by the commitment of academics, lawyers, judges, and advocates working for the rights of those in Korean society who have disabilities.  Seoul is a fabulous city–to be honest, I had no idea I would like it so much.  It has been a great trip, and I hope I will have the opportunity to visit again soon.

Today, I meet Prof. Ko Se-Il, from Pai Chai University in Daejeon, who is attending the conference.  I was thrilled to learn that he is a regular reader of the Elder Law Prof Blog!  I was very happy to know that the reach of the Blog extends to our colleagues on the other side of the world.  Prof. Ko, thanks for passing along that information! We’ll try to keep things interesting for you and your colleages. 

I hope to post more about the conference later this week.

November 21, 2013 in Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Worse than Payday Lending? Loans that Tie Pensions to Repayment

Somehow I had missed this particular incarnation of predatory lending.  The National Consumer Law Center (NCLC) recently circulated a consumer impact statement on pension-based loan scams.  Often advertised as "cash advances," in reality the individual is agreeing to assign future pension payments to the lender, with repayment terms that include an outrageously high interest rate.  In 2011, NCLC and attorneys with the National Association of Consumer Advocacy were successful in a class action suit in state court in California, in which they challenged loans requiring "assignments" of military pay or pensions as violating federal law.  The court ordered restitution to the class members

The New York Times ran a 2013  feature on "Loans Borrowed Against Pensions Squeeze Retirees," by Jessica Silver-Greenberg, part of a series on "A Vulnerable Age," that examined financial traps that can face older adults, especially during a tight economy.  A sidebar to the article detailed an example of a loan to a disabled military veteran for $10,000, with a $353 monthly payment for 60 months, leading to total costs over the life of the loan of $21,180, representing an interest rate of 36.4%.   

November 21, 2013 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Retirement | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

Senate Subcommitte on Aging launches anti-fraud hotline, senior-friendly website

Via the Senate Special Committee on Aging:

If you or someone you know suspect you’ve been victim of a scam or fraud aimed at seniors, the U.S. Senate Special Committee on Aging has set up a new toll-free hotline to help.  The hotline was unveiled today to make it easier for senior citizens to report suspected fraud and receive assistance.   It will be staffed by a team of committee investigators weekdays from 9 a.m. to 5 p.m. EST.  The investigators, who have experience with investment scams, identity theft, bogus sweepstakes and lottery schemes, Medicare and Social Security fraud, and a variety of other senior exploitation issues, will directly examine complaints and, if appropriate, refer them to the proper authorities.

Anyone with information about suspected fraud can call the toll-free fraud hotline at 1-855-303-9470, or contact the committee through its website, located at http://www.aging.senate.gov/fraud-hotline.  As chairman and ranking member of the committee, Sens. Bill Nelson (D-FL) and Susan Collins (R-ME) have made consumer protection and fraud prevention a primary focus of the committee’s work.  This year the panel has held hearings examining Jamaican lottery scams, tax-related identity theft, Social Security fraud and payday loans impact on seniors. 


The hotline’s unveiling also coPhoneincides with the committee’s launch of an enhanced senior-friendly website.   The site’s new features include large print, simple navigation and an uncluttered layout that enables seniors to find information more easily and conveniently.  Online visitors can also increase text size, change colors or view a text-only version of the site.  
 
 

November 14, 2013 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Web/Tech | Permalink | TrackBack (0)

Tuesday, November 12, 2013

Australia: New report says some facilities turn elderly into "zombies"

A new report highlighting the need for urgent action to improve residential aged care includes case studies of people being shackled, assaulted, sedated against their wishes and turned into "zombies".  Australian of the Year and Alzheimer's Australia national president, Ita Buttrose, today launched the report calling for good quality residential aged care to be the norm.  Quality of Residential Care: the Consumer Perspective acknowledges there are dedicated, compassionate people who work hard to provide quality care but notes there are instances of poor quality care.  In 2012 there were more than 220,000 people in Australia in residential aged care in more than 2700 facilities across the nation. 

"What worries me is that a minority of facilities are not providing good care, and that residents are not being respected and, in some cases, are subjected to physical or psychological abuse," Buttrose said.  "Since becoming president of Alzheimer's Australia many consumers have shared disturbing stories with me of physical, psychological and sexual abuse, inappropriate use of restraint, unreported assaults and people in extreme pain at end of life not having access to palliative care.  "The objective of the report developed by Alzheimer's Australia is to articulate the concerns of consumers, set out for discussion possible strategies to address them and to seek a higher priority for tackling them.

"It proposes strategies to bring providers, staff and consumers together to address the systemic issues in the aged care system that have led to breakdowns in quality care. Funding issues are important but equally so are the leadership and culture that respects the rights and dignity of older people. Common decency and respect costs nothing."

Source:  Brisbane Courier Mail

Full report here

November 12, 2013 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Housing | Permalink | TrackBack (0)

Sunday, November 10, 2013

Should "Elder Abuse" Trigger Disinheritance?

So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers.  The bar may arise by common law, often rooted in equity, or statute.   

As Harvard Law Professor Robert Sitkoff  summarizes well in his 9th edition (Dukeminier) of  Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."

However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason. 

For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions. 

The Washington case involved allegations made by three surviving children against their father's second wife.  The father was in his late eighties when he married the younger woman, who was younger by fifty years.  The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death.  See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).

In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults.  Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).

And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?" 

Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.

November 10, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, November 7, 2013

New Hampshire Law Establishes Liability for Agents Who Fail to File Timely Medicaid Applications

Effective this year, a new law enacted in New Hampshire declares that under certain circumstances a "fiduciary who possesses or controls the income or assets of a resident and has the authority and duty to file an application for Medicaid. . . shall be liable . . . to the long-term care facility for all costs of care which are not covered by Medicaid due to the fiduciary's negligence in failing to promptly and fully complete and pursue an application for Medicaid benefits for the resident." 

A bit of practical background is appropriate to appreciate the significance of this new law. 

Older individuals entering a nursing home have essentially three options for how to pay the bills at a facility: Medicare, Medicaid or Private Pay (and by private pay, I'm including the possibility of making a claim under long-term care insurance, family contributions or the resident or couple's  income and savings). 

For older individuals going directly from a hospital into skilled care or rehabilitative care, Medicare is often the first payment source, for up to 100 days per spell of illness.  On a comparative basis, Medicare is relatively easy to negotiate, as the facility usually handles the initial paperwork. 

It gets trickier, however, if long-term care is contemplated and Medicaid could be a possibility.  Medicaid-eligible facilities prefer the higher pay rates associated with private pay, and therefore may not be highly motivated to talk with residents or families about Medicaid, unless it is the only option.  But they often ask family members to pay and thus the burden of figuring out how to pay is on the family.  Sometimes that family member is the out-of-town son or daughter.  Sometimes that family member is a frail spouse.

As I have discussed in prior scholarship, gaps in payment sources can occur for a variety of reasons.  The resident is rarely the cause of the gap as usually the frailty or illness of residents is the reason they are in a care facility to begin with.  Rather, some third-party -- or the facility itself --will usually have to handle the paperwork  associated with Medicaid applications. And Medicaid applications, typically requiring collection and analysis of the previous five years of the applicant's financial records, can be challenging.

So, who are these fiduciaries facing potential liability?  The New Hampshire law says a "fiduciary" is a "person to whom power or property has been formally entrusted for the benefit of another such as an attorney-in-fact, legal guardian, trustee, or representative payee." 

There are additional conditions and qualifications in the statute affecting the potential liability of the agent or other fiduciary.  ElderLawGuy Jeff Marshall on his Blog has a thoughtful analysis of implications of the new law.

My starting question:  So, what about the family member who is named as an agent under a power of attorney, has never taken action under the POA, and for whatever reason (tiredness, lack of understanding, perhaps being overwhelmed by work or other family responsibilities) does not step forward to handle the Medicaid application process.  Is having the "authority" to serve as an agent enough  -- under this statute -- to trigger a corresponding duty?  

By the way, as I discussed in an August post, New Hampshire recently repealled its filial support laws.  I am now wondering if there was some horse-trading in the halls of the N.H. legislature whereby nursing home lobbyists agreed to the repeal of filial support laws in exchange for what I might call "fiduciary support" liability?  Anyone with insights into the history of this new law?

Feel free to "comment" below.

November 7, 2013 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

Elder Justice: 9 Principles Recommended for Federal Involvement on Elder Abuse

At the LeadingAge annual meeting in Dallas, earlier this week, I attended a round table session hosted by representatives of the Elder Justice Working Group (EJWG), a component of the Elder Justice Coordinating Council (EJCC).  The two presenters sought response from the audience, which included individuals from CCRCs, nursing homes, senior housing authorities and other providers of senior living or senior care, to the EJCC's Principles for Action (developed from 9 proposals of the EJWG) aimed at improving national awareness and response to elder abuse, neglect and exploitation. 

Here are the first 3 of 9 Principles:

"1. Support the investigations and prosecution of elder abuse, neglect and financial exploitation cases,

2. Support and protect elder victims by improving identification of elder abuse and enhancing response and outreach to victims.

3. Develop a national Adult Protective Services system based upon standardized data collection and a core set of service provision standards and best practices."

For addtional information on recommended federal action, including the other 6 principles, see details reported at the most recent, September meeting of the EJCC

Our LeadingAge roundtable session focused on practical concerns, including the frustrations felt by some in the room in reporting suspected abuse at a local level,  but seeing no response.

I was struck by the very diverse makeup of the individuals choosing to attend a session on elder abuse, both in terms of race and geography, drawing from Maine to Hawaii -- and on to Guam, and thus strongly supporting the EJCC's concerns about nationalized data collection and the need for standardized reporting. 

October 30, 2013 in Elder Abuse/Guardianship/Conservatorship, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

India news: Parent dumping will not be tolerated in Guruvayur

Via the New Indian Express:
State Women’s Commission member Prof K A Thulasi held a sitting on the Guruvayur temple premises here on Friday following reports of rise in elders being dumped at the temple by their children.  Thulasi, who spoke to around 25 people, directed the Thrissur RDO to submit a detailed report regarding parents being dumped in Guruvayur.  Strict action would be initiated against those who abandon their aged parents in Guruvayur under the Welfare of Parents and Senior Citizen’s Act 2007, which allows parents to take their children to court.  In cases involving children abusing parents and driving them out of home, asking them to part with their property or transfer them to their names, the transactions which took place after 2007, will be nullified, she said. 

A detailed report describing the plight of the elderly people in Guruvayur will be submitted to the government.  The report on the elderly will include recommendations  to set up more rehabilitation centres in areas which are vulnerable for these kinds of acts, Thulasi said.

Many of the elderly people to whom the Commissioner spoke on Friday expressed their willingness to meet their children and spend rest of their lives with family.

Read more in the New Indian Express.

October 28, 2013 in Elder Abuse/Guardianship/Conservatorship, Other | Permalink | TrackBack (0)

Friday, October 25, 2013

Views (from the Legal Trenches) on Powers of Attorney

Earlier this week, I posted an update about state law reform movements regarding Powers of Attorney, including the Uniform Power of Attorney Act of 2006 (UPOAA), which so far has been adopted in 13 states and is currently under consideration in Pennsylvania and Mississippi.

I've been getting very interesting responses, and I'll try to capture some here in the blog as I have time.  To start things rolling,  I'll share some thoughtful comments from Robert Slutsky, a Pennsylvania attorney who focuses his practice on elder law, estate planning and administration, guardianships and real estate .  He's also a '92 grad of the Dickinson School of Law, so he's been doing this awhile.  He gave me permission to excerpt his emails.  

In writing to me, Robert said he was adopting the role of devil's advocate.  Certainly turn-around is fair play for graduates with law professors!  Based on his experiences, he worries about law reform efforts that could make POAs less useful to the majority of people who use them properly.  Restrictions could be penalizing the wrong people.  As he puts it succinctly, "Occasional problems with POAs result from evil people who know what is right and wrong and choose to do wrong.... Trying to solve a problem caused by bad people by restricting those who use POAS properly is ineffective and counterproductive." 

Robert also serves as the solicitor for a county adult protective services unit, and he does see instances of financial exploitation, although he says he sees more cases of caregiver neglect or self neglect.  That observation is consistent with annual reports in Pennsylvania and elsewhere.  Unfortunately, data on abuse is not regularly collected or evaluated on a national level, as discussed in the July 2013 GAO Report to Congress on "Elder Justice: More Federal Coordination and Public Awareness Needed."

Robert Slutsky says that even when he sees financial abuse, it "rarely" involves POAs as the tool to victimize older persons.  He also warns that while a prosecutor may view a case of a child using a elderly parent's money as "abusive," a full history may show a long pattern of parental approval or tacit permission, and thus with families it can often be a "gray area" regarding permitted use.

Thank you, Robert.

Readers, feel free to add your comments, either to the original post or below. 

October 25, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

Senate Committee on Aging Calls for Federal Scrutiny of Nursing Home Trust Account Practices

Following last week's USA Today article exposing thefts by nursing home employees from resident trust accounts, Senator Bill Nelson, chair of the U.S. Senate Special Committee on Aging, has called upon the Inspector General to investigate management and oversight practices and to reommend corrective action by the Centers for Medicare and Medicaid (CMS).  CMS has oversight authority over nursing homes. 

In a letter dated October 21, Senator Nelson targets the absence of standard protocals for safeguarding such accounts:

"Widespread negligent oversight allowed some of these theft and embezzlements schemes to go on undetected for years, and in some instances the losses totaled more than $100,000. Several of these trust fund culprits were caught merely by accident or due to the suspicions of a co-worker, and not by systematic financial auditing or tight management controls."

If, as the saying goes, no good deed goes unpunished, no bad deed by a nursing home goes uninvestigated by Congress.  Stay tuned, but don't hold your breath. 

October 23, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, October 20, 2013

The Big Story on AP: Don't Turn Your Eyes Away

Following up on her story of filal support in China, AP Writer Kristen Gelineau's new article on elder abuse identifies several factors that can lead to tragedy: an elder's frailty, a family's inability to provide appropriate care (whether because of emotional unsuitability or financial pressures, or both), and isolation. The latest account comes from Kristen's own country, Australia, "a developed, wealthy nation considered progressive in its treatment of seniors."

Eighty-eight year old Cynthia lived with a daughter, Marguerite, who received a caregiver's benefit of about $500 every two weeks.  That money was her mother's one last tie to the outside world, but it wasn't enough. 

"Once the payments started, the government welfare agency, Centrelink, never asked for further medical updates on Cynthia, Marguerite said.

 

Cynthia also vanished from the health care system. Medicare records show that until 2003, she regularly saw doctors and took prescription medications; Marguerite said the doctors' visits were covered by government health care. But after 2003, Cynthia never saw another doctor, never filled another prescription.

 

She simply slipped through the cracks, showing how the protection of social networks can evaporate with age. A doctor or teacher may notice the bruises on a child. But almost nobody sees the bruises on a secluded older person — and those who do may chalk them up to aging.

 

Marguerite's explanation, years later, for why she stopped taking her mother to the doctor: 'Well, she didn't say she was ill...She seemed happy.'"

As Kristen's reporting makes clear, what happens to Cynthia could happen in any country that turns its eyes away from the potential for suffering by isolated elders.  Make  yourself read "Neglected Old Australian Woman Suffers Brutal Fate." 

 

October 20, 2013 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, October 17, 2013

USA Today: Reporting on Thefts from Nursing Home Trust Funds

I have to admit that I pass over a fair number of opportunities to write in this Blog about problems in nursing homes. Experience tells me that nursing homes are on the front lines of the care battle, are heavily regulated (for good reasons), and are trying to do a tough job with ever decreasing resources.  There are problems, but the problems also exist with other forms of facility-based care that don't receive the same attention by regulators and the media. 

But today's USA Today's article on "Thefts From Nursing Home Trust Funds Target the Elderly," addresses a form of abuse that is particularly troublesome, in part because it should be darn easy to prevent with proper accounting safeguards for client funds.   Here's the opening to the story:

"The administrator at the Vicksburg Convalescent Center knew something was wrong when she saw the receipt: a $90 debit from a resident's trust fund account for a pair of designer jeans.

 

Of all the elderly residents at the 100-bed nursing home, Amy Brown figured, this one was especially unlikely to spend his savings on pricey pants.

 

Both of his legs had been amputated."

As Kim Dayton reminds us in her separate post, "October is Residents' Rights Month."  Of course, abuse is wrong on any day of the year. 

October 17, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 16, 2013

New AARP report addresses residential decision-making by guardians

Guardians find their choice of residence for an incapacitated individual is “frequently not really a choice, but simply the best of the limited options,” according to a new report from the AARP Public Policy Institute. 
One of the most important decisions a guardian must make is where the person lives: in a personal or family residence, the community or a nursing facility. In making this decision, a guardian may consider a person’s expressed prefereBldgnces, availability of settings, financial resources, perceived risk, care and supervision needed, applicable law, court orders and other factors. The report finds, however, that state budget cutbacks and a short supply of affordable housing have greatly curtailed guardians’ options, especially for low- and moderate-income individuals.
The professional guardians surveyed for Choosing Home for Someone Else: Guardian Decisions on Long-Term Services and Supports say they generally prefer to place incapacitated individuals in community settings—which are less restrictive, less isolating and less costly than institutions. But, guardians are challenged in find state funded long-term services and supports if the individual has few resources and maintaining individuals in the community can require considerably more time, effort and risk than in an institutional setting. The report concludes that helping someone stay in the community is difficult, despite the almost universal desire among older Americans to age in place and the potential for home- and community-based services to cut Medicaid costs.
Highlighting the challenges fac ed by professional guardians, the findings in the report also apply to family caregivers who must navigate today’s fragmented long-term care system when deciding where their loved ones should live. “Family members as well as professional guardians must navigate today’s fragmented long-term care system when deciding where their loved ones will live,” said Erica Wood, the repor t’s co-author. “That is often a very frustrating process.”
Among other things, the report recommends, “States should seek to expand home- and 
community-based services, better balance services from institutional to non-institutional settings, and promote affordable, accessible housing.”
Choosing Home for Someone Else: Guardian Decisions on Long-Term Services and Supports is based on a web-based survey of 531professional guardians conducted in August 2010, a series of ten in-depth telephone interviews with guardians who had responded to the survey and were selected for a diversity of professional roles and geographic locations and the results of a structured invitational roundtable of experts including public, private, and lay guardians; elder law attorneys; a judge; federal agency officials; aging advocates; researchers; and aging and disability organization representatives conducted in May 2011.
 

October 16, 2013 in Elder Abuse/Guardianship/Conservatorship, Housing | Permalink | TrackBack (0)

Tuesday, October 8, 2013

And rock some more....

Following up on Becky's post--this is old news, but it is Old News Worth Repeating: the SAFE Minnesota phone/Iphone app       

During their spring 2013 semester in my Elder Justice and Policy Keystone course, students wrote an elder abuse application called “SAFE MN.”  The app is intended for use by law enforcement officials, first responders, mandated reporters, and laypersons who encounter possible abuse or exploitation of a vulnerable adult or older person.  The app provides information about the signs and symptoms of abuse, hotline nSafeumbers, and other resources that will help identify abuse and abusers, allow for reporting and, in appropriate cases, facilitate prosecution.  Keystone students compiled and organized the app’s substantive content, and Chris   , who was a programmer prior to law school and has written a number of apps, wrote the code.

Although the app was intended for use in Minnesota, much of its content is generic.  The app is free, and available for download both from Google Play (Android) and from Apple. 

Desiree Toldt, who will graduate from Mitchell in May 2014, also wrote a paper that serves as a step-by-step guide to others interested in replicating the app in their own jurisdictions.  To obtain a copy of the paper, contact me (use email link in my bio, below).

Kudos to these students for their outstanding work!

More on the Safe MN project.

October 8, 2013 in Elder Abuse/Guardianship/Conservatorship, Other, Web/Tech | Permalink | TrackBack (0)

Forensic Neuroscience & Risk for Vulnerability to Undue Influence

The Center for Law, Brain and Behavior (CLBB) at Massachusetts General Hospital (MGH) has a fascinating sounding project underway: using neuroscience to develop tools to evaluate human susceptibility to undue influence.  Here's a brief description from a recent MGH newsletter:

"A second CLBB project focuses on older adults with cognitive impairment who are at heightened vulnerability to coercion by opportunists hoping to control their decisions, particularly concerning financial matters. The goal of the study is to devise and test a psychometric instrument to measure susceptibility to undue influence that can be used in proceedings about guardianship, testamentary capacity and informed consent.'The development of this tool will make an immediate contribution to the protection of adults with mild to severe intellectual impairments,' says Dr. Price."

Hat tip to Ross Schmucki, Esq. of Media, Pennsylvania for sharing this news. 

October 8, 2013 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Science | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 2, 2013

Designing Laws re Protection of Older Persons from Abuse (and writing on a "clean slate" in 2013): What Would You Include?

Recently I have the privilege of joining an international, interdisciplinary team of academics and practitioners working on new legislation for protection of adults, especially older adults, from abuse, neglect and financial exploitation.  I hope to report more about our work in the future. 

At our first meeting, I was interested to hear the commonality of themes between the U.S. and other countries involved in the research.  Aside from the basics, which include definition of terms and scope of duties to report, two themes struck me as persistent and tough, despite each country's efforts to tackle the problems:

  • First, whether initial reports of suspected abuse should go to a "civil" investigatory agency, or also to traditional law enforcement (police, garda, gendarmes, sheriffs, etc.). 
  • Second, the challenges of determining capacity of the possible victim to consent to the investigation (or to accept, for lack of a better word, the consequences of suspected abuse).

Perhaps you have individual concerns about the effectiveness (or ineffectiveness?) of adult protective service laws in your jurisdiction. 

We'd love to receive your comments.

October 2, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, August 30, 2013

Conflicts of Interest for Conservators/Guardians: A Judge's Perspective

Missouri Circuit Court Judge Karl A.W. DeMarce offers thoughtful comments from the bench on potential conflicts of interest for family members, especially spouses, in handling responsibilities as court-appointed conservators or guardians.  Judge DeMarce stresses the lawyer's role in advising  conservators on appropriate financial transactions, including transfers of assets:

"No conservator-spouse should have to face unnecessary legal complications and burdens – in addition to the family tragedy of having to care for a loved one no longer capable of managing his own affairs – because her attorney failed to advise her of the legal obligations and potential conflicts of interest involved. No attorney wants to learn that a client’s world has been unnecessarily turned upside down because of his or her failure to provide timely and complete legal advice. In the potential legal minefield of spousal conservatorship, the value of frank, timely, and comprehensive legal advice cannot be overestimated."

Further, the judge points to the lawyer's role in explaining the validity of transactions to the court:

"Counsel can play a valuable role not only in advising the conservator-spouse, but also in explaining to the probate division why certain types of expenses beneficial to the conservator-spouse, which would ordinarily be seen as being in violation of fiduciary duties, may be in the protectee’s best interests due to MO HealthNet program requirements."

Read the full article, "The World Turned Upside Down: Challenges Facing the Conservator-Spouse," published in the August 2013 issue of the Journal of the Missouri Bar.

August 30, 2013 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Friday, August 23, 2013

Consumer Protection: Helping Aging Family Members Avoid Telemarketers

While visiting family recently, I wound up answering the telephone several times and realized how often my parents were receiving calls from telemarketers.  The callers were exceptionally clever, obviously working off lists that suggested the age of the owner of the telephone number. The calls were seductive, pitching "permanent" lowering of utility bills, free home inspections, or unnecessary renewals of magazine "subscriptions." I realized how easy it was to listen just long enough to be sucked into one or another "hook."  

Older adults remain prime targets for telemarketers because they still have "land lines," tend to be less likely to call or use the internet to register for "Do Not Call" protection, and because they probably spend more time at home.  During the years of working with Penn State's Elder Protection Clinic, we had several cases of major financial exploitation that started with telephone scams. Often the son or daughter said, "I can't believe my frugal mom would fall for such a thing."  But the scammers know how to work the emotions of a frugal elder and prey upon any diminishment of critical thinking skills or judgment (sometimes a subtle, early but still unrealized sign of cognitive decline).

Perhaps that's where attorneys can help families protect their older family members.  As part of an Elder Law attorney's practice, at an early meeting, we can ask, "have you (or your parent) registered for 'Do Not Call?'"  And we can have the information on how to register readily available. 

Here's a link for consumer information from the Federal Trade Commission on the registry program and here's the link for the Do Not Call Registry on-line.   

Oh, and contrary to one of the scammer's arguments, there is no "expiration" date for telephone numbers on the Do Not Call Registry! 

-- Katherine C. Pearson, Penn State Law

August 23, 2013 in Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)