Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, May 9, 2014

ABA Bifocal Topics: Health Care Advance Directives, Guardianships and More

The April 2014 issue of the American Bar Association's Bifocal publication is now available.  Current articles include:

By the way, while most Bifocal articles are written by practicing attorneys, American Univesity Washington College of Law student, Karna Sandler, is the author of the article on how state laws may affect a guardian's health care authority.  Karna's an intern at the Commission on Law and Aging.  Way to go, Karna!

 In addtion, the issue provides details about AARP Foundation Scholarships to assist individuals in attending the 2014 National Aging and Law Conference to be held in Washington D.C. on October 16-17.  Deadline for the scholarship applications is June 15, 2014. 

May 9, 2014 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, April 25, 2014

Prof. Alexander Boni-Saenz on "Personal Delegations"

Chicago-Kent Law Professor Alexander A. Boni-Saenz shared a copy of his law review article, "Personal Delegations," published recently in the Brooklyn Law Review.  Here is an intriguing excerpt from the introduction, minus the footnotes:

"Donald and Gloria Luster married on October 5, 1963 and had four children. Donald retired in 2005, and it was about this time when Jeannine Childree, his youngest daughter and a registered nurse, noticed that he was exhibiting signs of dementia. After a number of consultations with doctors, Donald was officially diagnosed with Alzheimer's disease in 2009 due to his memory loss, disorientation, and other cognitive impairments. Based on these medical evaluations, a Connecticut probate court declared Donald incapable of handling his personal or financial affairs and appointed Jeannine and his other daughter, Jennifer Dearborn, as his guardians. Shortly thereafter, Gloria filed for a legal separation from Donald, and in response, the daughters counterclaimed for divorce, suspecting their mother of financial and emotional abuse. Should the guardian-daughters have the authority to sue for divorce on behalf of their father?"

The author then offers a second fact pattern, involving a man serving as agent for his incapacitated brother under a power of attorney, asking whether the agent should have "authority to execute a will on his brother's behalf," where only a small percentage would be left to the brother's biological child. 

Professor Boni-Saenz suggests that the numbers of people lacking "decisional capacitiy" are in the millions and "will only increase with an aging population."  This likelihood "presents many difficult questions" while also creating "an opportunity to rethink and reevaluate how the law treats people with cognitive impairments."  He then introduces his "personal delegation" thesis, in support of giving greater deference to agents in certain circumstances, permitting them to make binding decisions that might otherwise be questioned under what he outlines as a bias or presumption in current law:

 "The central claim of this article is that in the case of decisional incapacity, decisions that implicate fundamental human capabilities should generally be delegable. Thus, it rejects the rationale employed by courts to justify nondelegation--that these types of decisions are too personal to be made by another. This line of reasoning confuses nondelegation for nondecision, and it only serves to privilege a status quo outcome over the expression of fundamental human capabilities by individuals with cognitive impairments."

The full article is easily available on SSRN and on Professor Boni-Saenz' faculty web page, linked above.

April 25, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, April 24, 2014

Veterans die after being placed on VA Hospital’s secret waiting list

Via CNN:

At least 40 U.S. veterans died waiting for appointments at the Phoenix Veterans Affairs Health Care system, many of whom were placed on a secret waiting list.  The secret list was part of an elaborate scheme designed by Veterans Affairs managers in Phoenix who were trying to hide that 1,400 to 1,600 sick veterans were forced to wait months to see a doctor, according to a recently retired top VA doctor and several high-level sources.  For six months, CNN has been reporting on extended delays in health care appointments suffered by veterans across the country and who died while waiting for appointments and care. But the new revelations about the Phoenix VA are perhaps the most disturbing and striking to come to light thus far.  Internal e-mails obtained by CNN show that top management at the VA hospital in Arizona knew about the practice and even defended it.

Read more at CNN Wire.

April 24, 2014 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | Permalink | TrackBack (0)

Monday, April 21, 2014

Potpourri: Recent "Elder Law" Articles from SSRN

Here's a sampling of recently published articles from the Social Science Research Network (SSRN) falling loosely under the heading of "Elder Law" as well as other classifications:

From our Law Prof Blogging colleague Gerry Beyer, "Who Said Learning Trusts & Estates Can't Be Fun?"  The abstract alone is inspiring for those of us who teach in this field:

"From even before their first day of law school, Texas Tech University School of Law students have the opportunity to appreciate the importance of the estate planning area and to understand that it can be both an enjoyable and rewarding area of law in which to practice. During orientation, which takes place the week before classes start, new students participate in full-day programs centered on a particular area of practice either of their own choosing or assigned by the administration. For the 2013 entering class, I was in charge of two full-day Estate Planning Tracks with a total of aproximately thirty-five entering students.



As their legal education continues, students have additional exposure, some mandatory and some optional, to estate planning topics. In my first year required Property course, I spend several days reviewing the basic principles of intestate succession and wills. Texas Tech then requires all students to complete a four-credit introductory course entitled Wills and Trusts as a condition of graduation during their second or third year. Students desiring a more sophisticated treatment may take courses such as Estate Planning, Texas Estate Administration, Guardianship, Estate and Gift Tax, Elder Law, and Marital Property. Students may also compete for a coveted position as an editor for the Estate Planning and Community Property Law Journal that Texas Tech publishes.



This Article reveals my basic teaching philosophy and the general pedagogical techniques I employ to make Trusts and Estates topics both fun and relevant. I will then share with you the specific tools I use when teaching the introductory course as well as the advanced courses such as Estate Planning and Texas Estate Administration. It is my hope that you may be able to gain insight from my approach to enhance your own teaching and the experience you provide to your students."

From Northern Illinois Law Librarian Sharon Nelson, a thoughtful bibliography of articles drawing lines between mistreatment of animals and the potential for family member abuse or neglect.  I have to say that I never thought about this connection before, but it does ring true for a possibly related phenomenon I observed when we were interviewing caregivers for an aging family member.  If candidates were nervous around our completely benign pooches, they rarely coped well with the not-so-benign family member.  Nelson sumarizes her article, titled "The Connection Between Animal Abuse and Family Violence:"

"This Selected Annotated Bibliography assembles legal and social literature that examines the link between domestic violence and animal abuse. Drawing from an ever-growing body of written works dedicated to the issue, the Bibliography presents the works that are most informative and useful to the legal community. These include case studies, current and proposed legislation, and social services guides that address the occurrence of and response to the animal cruelty-family violence correlation. In doing so, the Bibliography creates a resource that will prove helpful to a variety of legal practitioners, law makers, and professionals within the criminal justice system, and will serve as a tool to promote further understanding of the patterns of abuse that often concurrently victimize both humans and animals."

And from Canadian J.D. candidate Mathew Ponsford, an article about implications of advance care decision-making issues and legislation in Ottowa, "A Discussion of Conflict Resolution Processes Used in End-of-Life Care Disputes Between Families and Healthcare Providers in Canada."  The abstract begins:

"Conflict at the end-of-life, particularly between families and healthcare providers, involves many complex factors: differing opinions surrounding a patient’s prognosis, cultural differences, moral values and religious beliefs, associated costs, internal family dynamics, and of course, legal ramifications. Bill-52 (2013): An Act Respecting End-of-Life Care, introduced in Québec's National Assembly, will have far-reaching implications for healthcare decision-making for families, healthcare providers, religious groups, and others. Here, Bill-52 is used as the backdrop to examining the often neglected stories of disputes arising between families and healthcare providers, and the communication strategies, negotiation and mediation processes which result amidst an often stressful, costly, and time-consuming ordeal. Numerous conflict resolution processes are discussed, but the Consent and Capacity Board, regulated through Ontario's Health Care Consent Act (HCCA), is the primary focus. The importance of empathy and cultural understanding is also analyzed, as well as the challenges of cross-cultural conflict, including sensitivities toward Canada's First Nations peoples."

April 21, 2014 in Advance Directives/End-of-Life, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts | Permalink | Comments (0) | TrackBack (0)

Friday, April 18, 2014

Older Adult Protective Service Options: When Even Court Orders Are Not Enough

My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad.  A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney.  The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA.  The conviction was affirmed.

On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft.  The broadly worded POA was executed by the mother in 2006 when everyone was healthy.  The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility.  The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility. 

It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role.  For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts. 

Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009.  Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals.  And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.

The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring.  Not easy -- not fun -- and, again, sad. 

April 18, 2014 in Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, State Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Congrats to Kim Dayton and co-authors-new book

Congrats to dear friend, co-blogger and webmom Kim Dayton who spearheaded a recently published book, Comparative Perspectives on Adult Guardianship. Published by Carolina Academic Press, the book is available for purchase for $53 (currently at 10% discount is available for internet orders). The website describes the book as

[A] compilation of chapter-essays from some of the world’s leading authorities on adult Coverguardianship law. The essays cover a wide range of topics from both theoretical and practical perspectives. Part I of the book introduces some of the basic concepts that transcend the national guardianship system, approaching these concepts from a comparative perspective. Part II’s essays provide comprehensive information on guardianship systems around the world. Essays in Part III outline an ambitious agenda for reforming adult guardianship regimes. The book is a must read for those concerned with the role of national and international law in defining and expanding the rights of older persons and persons with disabilities who are at risk of being placed under guardianship due to cognitive or other disabilities.

The book has 23 chapters that cover a range of topics and a selected bibliography that includes selected governmental reports, conventions, articles and books. Authors include a number from the United States as well as Japan, China, Canada, Australia, Korea, The Netherlands, The U.K, Israel, England,  Sweden, and Turkey.

The introduction to the book, authored by Jochen Exler-Konig (Germany), chair of the International Guardianship Network, describes the importance of this book:

Modern societies around the globe are confronting an increasing incidence of disability associated with an aging population, and growing acknowledgment of mental health issues, developmental disabilities, and the consequences of brain injuries. Adult guardianship is no longer merely a local concern. It has been suggested that more than 1% of the adult population 18 years and older in industrialized nations is under formal legal guardianship...The number of persons in need of guardianship, and guardianship caseloads, can be expected to grow exponentially in the next few decades. This reality raises a number of questions: How can we address the needs of persons who need protection, while preserving their autonomy and personal dignity? How can adult guardianship systems accommodate these competing concerns?

Complimentary copies are available for professors by requesting an exam copy. Kim Dayton ROCKS!!!

 

 


April 15, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 13, 2014

Critical Issues to Consider in Planning Via Powers of Attorney

ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."  

April 13, 2014 in Advance Directives/End-of-Life, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)

Saturday, April 12, 2014

Pennsylvania's Current Debate: How Best to Respond to Elder Exploitation?

I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons. 

As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.  

Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners.  In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.   

Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation.  Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:

  • In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife.  In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid  -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency.   (There were  strong dissents to the majority's ruling,).   The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters.  In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid.  The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
  • Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
  • The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA  recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders. 
  • In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf).  Each bill passed in their respective houses.  (This single sentence truncates several years of  history about the negotiations, all set against the background of need for a "Vine" fix.)  Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
  • Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies,  other legislative proposals emerged.  These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers. 

In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months.  In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix.  There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills.  Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.

All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity. 

At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor.  Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight.  By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act).  Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.

There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards.  The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.

Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.

April 12, 2014 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1) | TrackBack (0)

Wednesday, April 9, 2014

Submit Guardianship Related Resources to NGN's New Resource Library

The National Guardianship Network is compling reources for the online International Resource Library on Adult Guardianship. If you have a resource that could be beneficial to your fellow professionals, please consider sharing it on our online library. Forms, manuals, checklists, brochures and more will be posted as a shared resource in this library. Documents can be emailed to info@nationalguardianshipnetwork.org (use the subject “resource library” so that that these materials are not confused with presenters’ Congress handouts). Please provide, in English, a description regarding the document(s) you send, so that we can name and categorize them. Resources may be in English or in the language in which they were written. Please respect U.S. Copyright laws.

April 9, 2014 in Elder Abuse/Guardianship/Conservatorship, Web/Tech | Permalink | TrackBack (0)

Monday, March 31, 2014

IRS warns of tax-related phone scam sweeping the nation

Via AARP:

A fast-moving phone scam called the largest of its kind is targeting taxpayers across the country. Victims have reported threats of license suspension, arrest and deportation.  What makes this timely scam so tricky? The scammers impersonate Internal Revenue Service (IRS) agents and demand payment for taxes owed, and often:

  • know the last four digits of the victim’s Social Security number;
  • make caller ID appear as if the IRS is calling;
  • send follow-up bogus IRS emails to support their scam; and
  • call a second time claiming to be the police or Department of Motor Vehicles, and caller ID again supports their claim.

The IRS usually contacts people by mail not by phone about unpaid taxes.

The IRS won’t ask for payment using a pre-paid debit card or wire transfer, nor will they involve law enforcement or immigration agencies.

WHAT TO DO:

If you or a family member receives one of these calls, your best bet is to hang up. But if you do get into a conversation, do not give anyone money or credit card information over the phone and don’t trust callers who use threats or insults to bully you.

NEXT STEPS:

Report the incident to the Treasury Inspector General for Tax Administration at 1-800-366-4484.

File a complaint with the Federal Trade Commission at www.ftc.gov.  Add "IRS Telephone Scam" to the comments in your complaint.

If you owe or think you owe federal taxes, call the IRS directly at 1-800-829-1040 to verify information.

For more information, visit www.irs.gov.

Please help spread the word about this tax season scam by sharing this email with your friends and family.

If you or someone you know has been a victim of identity theft or fraud, contact the AARP Foundation Fraud Fighter Center at 1-800-646-2283.

March 31, 2014 in Elder Abuse/Guardianship/Conservatorship, Other | Permalink | TrackBack (0)

Monday, March 24, 2014

Law Commission of Ontario releases study papers on adult guardianship

In April 2013, the LCO issued a Call for Research Papers related to its project on Legal Capacity, Decision-making and Guardianship. The Call closed on June 30, 2013.

The LCO commissioned several papers in order to provide background research for its Legal Capacity, Decision-making and Guardianship project. This research will be taken into account in the LCO's analysis and recommendations, along with other research, consultations and feedback to other published documents.

March 24, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Call for a "Collaborative National Strategy" On Elder Abuse

Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:

  • Lack of a comprehensive, national mandate for safeguard of older adults;
  • Lack of innovative legal reforms at the state level;
  • Ageism;
  • Invisibility of our older people;
  • Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
  • Absence of an international normative framework for protecting the rights of older persons.

All of these points strike a chord for those who work on behalf of victims of abuse in the United States.  Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.    

March 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

California Court: Enforceability of Mandatory Arbitration Clauses in Trusts

On March 11, 2014, California's intermediate appellate court ruled that a mandatory arbitration clause in an inter vivos trust would not control, where the beneficiary challenging the trust "was not a signatory to the arbitration agreement."  The daughter who challenged the document alleged her mother lacked capacity to sign the newly revised agreement in question and contended the revisions were the product of "elder abuse" and undue influence.  The decision offers much to consider. 

In McArthur v. McArthur, the court noted enforceability of arbitration provisions in trusts was a question of first impression in California and turned to other states for guidance.  In Schoneberger v. Oelze, 96 P. 3d 1078 (Az. Ct. App. 2004), the Arizona court ruled that arbitration clauses contained in trusts agreements are generally not enforceable against nonsignatory beneficiaries, a decision that was later superseded by revisions to Arizona statutes.  In Rachal v. Reitz, 203 S.W. 3d 840 (Tex. 2013), the Texas Supreme Court relied on wording of the state's arbitration law in concluding a trust beneficiary can be bound to arbitrate, regardless of whether the trust document was analyzed as a contract.

In ruling against mandatory arbitration, the California court characterized one daughter's argument that "public policy" favored arbitration of trust disputes as more appropriate for the Legislature.  The Court concluded that "whatever the national trend might be, [the proponent of the trust and mandatory arbitration] fails to demonstrate that any other jurisdiction would compel arbitration under the facts of this case, where the [contesting] beneficiary has not either expressly or implicitly sought the benefits of a trust agreement containing the disputed arbitration provision."

The California decision also points to several law review articles addressing arbitration provisions in trusts disputes, including a 1995 article by Yale Professor John H. Langbein, and a 2012 article by University of Missouri Law Professor S. I. Strong.  By email, Professor Strong notes it will be interesting to see whether the McArthur case goes to the California Supreme Court. 

While not addressed in the opinion directly, the details of the trust history in the California case also suggest another potentially interesting question, about the use of particular "mandatory" dispute mechanisms or mandated organizations that could favor a certain result. 

The original McArthur trust, created in 2001, apparently granted the three daughters equal shares of their mother's estate.  The challenged 2011 amendment, however, allegedly favored one daughter and as described in footnote 2, added a "Christian Dispute Resolution" provision that described the mother and that same daughter as "Christians [who] believe the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church." The mother as "Trustor" and the mother and daughter as "Co-Trustees agree that any claim or dispute arising from or related to the Trust as amended shall be settled by biblically based mediation and, if necessary, legally binding arbitration before the Institute for Christian Conciliation (TM), a division of Peacemaker (R) Ministries...."  

So, if one challenges the very essence of the amended trust and the role of the new co-trustee, doesn't that suggest the challenger might have a uniquely steep uphill climb, whether or not a "member" of the faith or organization granted the power of enforcement?

March 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Religion, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, March 14, 2014

Reminder: Third World Congress on Adult Guardianship--registration is underway

The Third World Congress on Adult Guardianship will be in Washington DC May 28-30.  Registration is now underway.  Anyone interested in national and international developments in the realm of guardianship should attend this conference, which features speakers from 21 countries/six continents. 

Information about the Congress, and registration materials, are available via the main website.  My advice:  this is one event you don't want to miss!

March 14, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs | Permalink | TrackBack (0)

Sunday, March 9, 2014

Arizona: Junior High Art Contest to Raise Awareness About Elder Abuse

 Via Yuma News Now:

In an effort to make young people aware of the tragedy of elder abuse, Attorney General Tom Horne and the Arizona Elder Abuse Coalition have partnered in the 2014 “Why Should I Care About Elder Abuse?” Junior High School Arts Competition. “This competition increases awareness of elder abuse to the younger generations,” said Horne. “While my office continues to prosecute perpetrators of elder abuse, only through awareness can we stop abuse before it begins.”

Submissions of poster art designs must be received by 5p.m. on May 2, 2014. Contest results will be announced in May. Statewide contest winners will receive a first, second and third place prize of $100, $75, $50, and five honorable mentions will receive $25. Winning artworks will be printed on a poster to be distributed as part of the statewide Elder Abuse Awareness campaign held to coincide with World Elder Abuse Awareness Day on June 15, 2014.

More info here.

March 9, 2014 in Elder Abuse/Guardianship/Conservatorship | Permalink | TrackBack (0)

Thursday, March 6, 2014

Court's Approval of Estate Account No Bar to Criminal Charges Against Trustee/Agent

In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate.  Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law." 

The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."

The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27,  allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy.  The allegations go back to 2007, with multiple continuances of the scheduled trial dates.

The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee.  The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough."  The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."  

Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour." 

The appellate opinions in the cases are fairly dry.  In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01. 

The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.  

March 6, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Residents File Class Action Against For-Profit CCRC in California

Last week I blogged about tax questions facing some nonprofit senior living operations, especially nonprofit Continuing Care Retirement Communities (CCRCs).  This week, we pass on news of a federal court suit filed by residents of a for-profit CCRC, challenging the company's accounting and allocation of fees, especially entrance fees, paid by the residents.

Residents of Vi of Palo Alto (formerly operating in Palo Alto as "Classic Residences by Hyatt") in California are challenging what could be described as "upstream" diversion of corporate assets to the parent company, CC-Palo Alto Inc.  They contend the diversion includes money which should have been protected to fund local operations or to secure promised "refunds" of entrance fees.  Further, the residents allege the diversion of money has triggered a higher tax burden on the local operation, a burden they allege has improperly increased the monthly maintenance fees also charged to residents.  According to the February 10, 2014 complaint, Vi of Palo Alto is running a multi-million dollar deficit and the residents point to the existence of actuarial opinions that support their allegations. The complaint alleges breach of contract, common law theories of concealment, misrepresentation and breach of fiduciary duty, and statutory theories of misconduct, including alleged violation of California's Elder Abuse laws.   

Representatives of the company deny the allegations, as reported in detail in Senior Housing News on February 23.  A previous resident class action filed in state court against a Classic Residence of Hyatt CCRC, now called Vi of La Jolla, also in California, settled in 2008

February 26, 2014 in Elder Abuse/Guardianship/Conservatorship, Federal Cases, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 12, 2014

Private Rights of Action Under Elder or Vulnerable Person Laws

Does your state have a statutory cause of action for "elder abuse?"  While all 50 states have some form of older adult protective service legislation that authorizes state authorities to investigate and intervene when reports are made of suspected abuse, not every state recognizes the right of the affected individual to seek damages or other relief from the perpetrator by proving violation of those same laws.  In states that do recognize a private right of action, the statutory grounds may provide a clear set of elements for proof of abuse, neglect, abandonment, or financial exploitation, thus supplementing the common law, and may also provide the prevailing party (sometimes limited to prevailing plaintiffs) with a right to recover attorneys fees.

California is probably the state with the best known statute authorizing private suits, including a right to seek attorneys fees, at Cal. Welf. & Inst. Code Section 15657 et seq.  California's law was  first adopted in 1991 as the Elder Abuse and Dependent Adult Civil Protection Act.  

However, the history of application of California's law has not been trouble-free.  In "Why Many Meritorious Elder Abuse Cases in California Are Not Litigated," (Winter 2013 Student Note, University of San Francisco Law Review), the author identifies several factors negatively affecting the likelihood of victim recovery, including lack of counsel willing to take cases, evidentiary issues such as confusion over burdens of proof, conflict within the victim's family affecting the lawyer-client relationship, and pressures to change or limit relief urged by institutional defendants.

February 12, 2014 in Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)