Monday, April 27, 2015
Recent news reports in the Sarasota Herald-Tribune have focused on "elder guardianships" in Florida. The articles include:
- The Kindness of Strangers: Inside Elder Guardianship in Florida, a three part "special project."
- A Civil Dispute Over Guardianship, detailing a conflict between co-trustees for a man in his 90s over costs of care. One trustee was concerned about what appear to be charities named as remainder beneficiaries and was described as making "imaginative" use of a guardianship to challenge the wife's role as the other named trustee. A sidebar in this article describes bills pending in the Florida legislature seeking to clarify the legal effect of a "power of attorney" when a guardianship petition is filed.
- Film to Detail Horror Stories from Florida Guardianship, describing a video project to share "stories about Florida's adult guardianship system," supported by a local "nonprofit organization called Americans Against Abusive Probate Guardianship."
April 27, 2015 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
On April 24, 2015, Iowa's Governor signed SF 306 into law, amending Iowa's Guardianship Law to recognize an express right of adult wards to "communication, visitation, or interaction with other persons." The law's effective date is July 1, 2015.
The law further provides that a court shall deny such rights "only upon a showing of good cause by the guardian." In the absence of an ability to give "express consent to such communication, visitation or interaction with a person due to a physical or mental condition, consent of an adult ward may be presumed by a guardian or a court based on an adult ward's prior relationship with such person."
This is an interesting law, especially coming on the heels of the Henry Rayhons trial in Iowa, even though there appears to be no direct correlation. The new provision does not, for example, define "interaction."
According to news reports, Kerri Kasem, the daughter of radio D.J. Casey Kasem, was present at the ceremony and lobbied for the bill after her late father was moved from his nursing home in California, first to Nevada and then to Washington without his children's knowledge or consent:
“This is a silent epidemic,” she said. “There are so many abuses of guardianships and so many abuses of caretakers.”
April 27, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, April 26, 2015
Sunday's New York Times has a feature article on aging and financial skills, and the message is not "just" for individuals with dementia:
"Studies show that the ability to perform simple math problems, as well as handling financial matters, are typically one of the first set of skills to decline in diseases of the mind, like Alzheimer’s, and Ms. Clark’s father-in-law, who suffered from mild dementia, was no exception. Research has also shown that even cognitively normal people may reach a point where financial decision-making becomes more challenging."
The article gives several example of individuals who were vulnerable to exploitation, because of their reduced interest in or understanding of financial decisions. David Laibson, an economics professor at Harvard, one of the researchers cited in the article said "he believed that crystallized intelligence tended to plateau when people reached their 70s." Further, "he wishes all 65-year-olds would start by simplifying their financial lives, reducing the money clutter to just a few mutual funds at a reputable institution."
The article, As Cognition Slips, Financial Skills Are Often the First to Go, offers several links to recent reports and studies, as well as examples of "early signs."
Hat tip to Penn State's Dickinson Law 1L student Spencer Flohr for sharing the link to this article -- and noting the probable relevance to law students' studies of trusts and estates law. Good catch!
April 26, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)
Thursday, April 23, 2015
As summarized in a recent article in the Washington Post, a new study places Washington D.C. fourth in the nation for seniors at hunger risk:
"The report says that more than 20 percent of the District’s elderly have concerns about eating enough food or the right kind of food, compared with more than 24 percent of seniors in Mississippi.
The estimates of senior hunger range from about 8 percent in Minnesota to more than 26 percent in Arkansas, which was ranked highest among states where seniors face the threat of hunger. Virginia and Maryland both had rates of about 14 percent.
The analysis – conducted by two university researchers on behalf of the nonprofit National Foundation to End Senior Hunger and the National Association of States United for Aging and Disabilities – says nearly 15.5 percent of elders, or 9.6 million people, in the United States face the threat of hunger...."
My thanks to George Washington Law Professor Naomi Cahn for sharing this article. We agree -- depressing news.
Wednesday, April 22, 2015
On Wednesday, April 22, 2015, at approximately 2:30 p.m. central time, after almost two full days of deliberations on a single count of statutory sexual abuse of his wife, a nursing home resident with dementia, the jury found 79-year-old former Iowa legislator Henry Rayhons NOT GUILTY.
As shown with pictures posted by KIMT.com Twitter, there are many tears in the courtroom.
Interestingly, as another indication of the State's aggressive prosecution of this case, the prosecutor filed a "Statement" with the court in Garner, Iowa yesterday, while the jury was still deliberating, asking that in the event of a conviction, Mr. Rayhons be taken immediately into custody. The explanation? The state contended that under Iowa law, sexual abuse in the third degree is covered by Iowa Code Section 709.4.(2)(a), and that any exception to "forcible felony" treatment for criminal sexual acts occurring between husband and wife does not apply, because they were not "cohabiting," at the time.
Therefore, argued the state, if convicted Mr. Rayhons would have been barred from posting bail pending appeal. Further, the prosecution argued the defendant would not have been eligible for a deferred or suspended sentence, and, once released, would be subject to restrictive, special parole terms for the rest of his life. See Iowa Code Section 701.11(1) on "forcible felony." See also Iowa Code Section 811.1. See also Iowa Code Section 907.3.
Fortunately for this defendant, the incarceration arguments are now moot.
This case has demonstrated, all too clearly, that we need better understanding of the relationship between dementia and legal capacity. The Rayhons case challenges us to consider carefully the appropriate balance between protection of individuals with Alzheimer's and recognition of fundamental human rights.
As additional details emerge, we'll supplement this post.
Here are two early stories on the aftermath of the jury's verdict:
From Bloomberg News' Bryan Gruley: Iowa Man Accused of Raping Wife with Alzheimer's is Acquitted, noting that this case "offered a rare look at a complex dilemma that will become more common as the 65-and-over population expands."
From The Des Moines Register (Tony Leys): Jury finds Henry Rayhons Not Guilty.
And from Iowa Public Radio and the local Globe Gazette, a brief video interview with a tearful Henry Rayhons. (Note the comments posted by viewers after the interview.)
April 22, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)
LTCCC press release says new study assesses nursing home citation rates nationwide, finds little or no punishment when nursing homes fail to provide care that meets the standards they are paid to achieve, even when such failures result in significant suffering.
Widespread and persistent nursing home problems, including serious deficiencies in care, result in unnecessary harm to thousands of vulnerable residents every day. Deficient and worthless services also cost taxpayers hundreds of millions of dollars a year. The nursing home industry frequently complains that it is one of the most highly regulated in the country. But what does that mean when so many nursing homes are consistently paid to provide care that fails to meet those standards?
LTCCC’s new report, , presents a comparative overview of every state’s (50 states + DC) performance on several key criteria. LTCCC assessed overall state citation rates, number and amounts of fines that each state has imposed in the last three years for violations of minimum standards and the rates at which the states identified resident harm when they found deficiencies. In addition to reviewing state citations as a whole, the study focused on three criteria important to quality care – pressure ulcers, staffing and antipsychotic drugging.
“While no data are perfect, we felt that assessing overall citation and penalty rates, as well as citations for three critical quality criteria, would together provide valuable insights into State Survey Agency performance and the extent to which important problems are being addressed in each state” said Richard Mollot, LTCCC’s Executive Director and author of the report.
1. Resident Harm. States only find harm to residents 3.41% of the time that they cite a deficiency. California and Alabama tied for lowest in the country, finding harm only 1.14% of the time.
2. Inappropriate Antipsychotic Drugging. The nationwide average antipsychotic drugging rate is 18.95% while the average citation rate for inappropriate drugging is 0.31%. This indicates that there is a significant amount of inappropriate antipsychotic drugging that is not being cited by the states.
3. Pressure Ulcers. Pressure ulcers (bed sores) are a problem for over 86,000 nursing home residents. Though they are largely preventable, states cite nursing homes the equivalent of less than 3% of the time that a resident has a pressure ulcer. When states do cite a facility for inadequate pressure ulcer care or prevention, they only identify this as harmful to residents about 25% of the time.
4. Sufficient Care Staff. Insufficient care staff is one of the biggest complaints made by nursing home residents and their families. Studies have repeatedly identified it as a serious problem in a majority of US nursing homes. Nevertheless, insufficient staffing is rarely cited by the states. The annual rate of staffing deficiencies per resident is infinitesimal: 0.042%. Less than 5% of those deficiencies are identified as resulting in harm. Twenty one states never connect insufficient care staff to resident harm in their states.
The report is available on LTCCC’s dedicated nursing home website at http://www.nursinghome411.org/articles/?category=lawgovernment. The website includes interactive charts showing key rates for each state as well as national averages. They include state rankings on criteria identified as important to nursing home resident care and the protection of taxpayer funds that pay for the majority of nursing home care. These charts can be used to gain insights into the strengths and weaknesses of quality oversight in any state.
Tuesday, April 21, 2015
Coverage of the closing arguments on Monday, from State of Iowa v. Henry Rahons, including video excerpts from each side's attorney, is provided here by the Des Moines Register.
According to KIMT.com's twitter feed, attorneys and Mr. Rayhons went into the judge's chambers at about 3:30 p.m. Central time on Tuesday, the second day of deliberations -- could a jury verdict be close?
UPDATE: Apparently the conference in the judge's chambers was to address jury questions. At approximately 4:15 on Tuesday, April 21, the jury "left for the day," to return to deliberations on Wednesday.
April 21, 2015 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)
On April 20, while the jury was hearing oral arguments on the high profile case of State of Iowa v. Henry Rayhons, I joined an academic colleague, Dr. Claire Flaherty, a neuropsychologist from Penn State Hershey Medical Center, to discuss the implications of this criminal case, during a Smart Talk public radio program in central Pennsylvania. Claire and I have been engaged in a cross-discipline dialogue for about two years about a host of legal questions that can arise with a diagnosis of any form of dementia, including FTD and Alzheimer's Disease. This time we were talking about the challenges of finding the right balance between protection from harm and recognition of human rights when the issue is sexual intimacy. Dr. Flaherty's clinical background, including her experience counseling individuals and families who are coping with the realities of dementia, helped make this a very down-to-earth conversation on a sensitive subject for live radio.
Our half of the program, was preceded by Joanne Carroll, president of TransCentral PA, and therapist and social worker Alexis Lake, a therapist and social worker who counsels LGBT clients, who discussed challenges and rights for transgender, gay, lesbian, and bi-sexual people, and the progress that has been made in the last decade, even as more progress needs to be made. I was struck by their frankness, both about their personal journeys, and the potential costs for anyone transitioning, including simple costs associated with new documents of identity, to bigger questions about how to pay for any surgeries, including whether Medicare will pay for the older person's surgery.
UPDATE: Here is an alternative link to the Smart Talk Program described above, on "SoundCloud," and available in three segments, each about 15 to 20 minutes in length. Our discussion of dementia and consent to sexual relations starts at about the 9 minute mark of Segment B.
April 21, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Medicare, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, April 20, 2015
On Monday, April 20, prosecution and defense made closing arguments in the trial of State of Iowa v. Henry Rayhons, a former state legislator, for alleged sexual abuse of his wife with Alzheimer's.
KIMT.Com's twitter account has photos combined with excerpts from the arguments, here.
Bryan Gruley, whose detailed December 2014 feature article for Bloomberg News on the Rayhon couple's history and the charges, remains the best account of the anticipated issues, has written a follow-up story for Bloomberg News about the trial itself, pointing to the potential long-range impact from the case. See today's Questions about Sex and Dementia Go to Jury for the First Time.
As before, if new details become available on public media about the trial, including any jury verdict today, we'll capture them on this post, with an update.
UPDATE: According to Iowa media sources, the jury adjourned for the day about 5 p.m. central time, after approximately an hour and a half of deliberations, including two questions from the jury.
April 20, 2015 in Cognitive Impairment, Crimes, Current Affairs, 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, April 17, 2015
On April 17, the trial continued in State of Iowa v. Henry Rayhons. The evidence included:
- Testimony by a Des Moines geriatrician, Robert Bender: Testified as an expert witness for the defense to explain that Alzheimer's patients often retain sexual desire, even after losing other brain functions such as speech or memory, and can make a "meaningful decision" to be intimate with the person. According to the Des Moines Register, Dr. Bender testified that it would be a "medical mistake" for a doctor to draw an arbitrary line between allowing a patient to kiss and hug but not allowing her to have sex, unless there was evidence the patient was being harmed by the activity.
Further, the defendant Henry Rayhons testified, giving his memory of key events, stating he did not have "sexual intercourse" with his wife on the night in question, while also describing what he means by their "playing." A video segment of his trial testimony is available here. Additional print media coverage of the final day of testimony on Friday is available here.
Additional audio-recording evidence was reportedly presented, from a care conference between Henry, his wife's daughters, and the nursing home staff at which the prosecution alleges Mr. Rayhons was advised of the doctor's conclusion about his wife's inability to consent to sexual activity. Both parties rested their cases on Friday, and according to media reports, the trial is scheduled to resume on Monday, April 27, with closing arguments by both the prosecution and defense.
As additional media reports from the trial today become available, I will supplement this post.
Additional, more comprehensive coverage of the testimony of Henry Rayhons is provided by Bloomburg News' Brian Gruley in Sex with your Wife or Rape? Husband of Alzheimer's Patient Takes the Stand.
In addition, Bloomberg News has "Let's Talk About Sex ... in Nursing Homes," an infographic that charts state policies on sexual rights of nursing home residents and other relevant demographics on population aging.
April 17, 2015 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 (1) | TrackBack (0)
Thursday, April 16, 2015
April 16, 2015 was the sixth day of trial in the criminal prosecution for sexual abuse in the third degree, in State of Iowa v. Henry Rayhons. The prosecution completed its case-in-chief, the trial judge denied defense counsel's motion for judgment of acquittal, and the defense counsel called several witnesses for Mr. Rayhons. Today's evidence, as described by various media sources linked below, included:
- Final Witness for the Prosecution: The state called a state criminologist to explain testing on various items of physical evidence,from the night in question. According to media coverage of the trial, the criminologist testified that "she did not find any seminal fluid in the sexual assault kit [on swabs from Donna taken on the night in question] but says that is not uncommon." She testified there "appeared to be a seminal fluid stain in the inside of Donna’s underwear," the same underwear that was alleged to have been deposited in a laundry hamper by the defendant on the night in question. Tests on the stain "detected DNA from [the defendant]."
- The First Witness for the Defense, the "Roommate:" The woman who shared Donna Rayhons' room in the nursing home the night on question, was reported as testifying that "Donna had become a good friend. Someone who she could count on to go to activities and speak with." She is reported to have testified she’s "uncomfortable talking about that day but says she does remember something happening, but only assumed that it was sex on the other side of the curtain."
- A Clinical Physician (and Assistant Professor of Medicine from the University of Iowa): The defendant's expert witness is reported as having given opinion testimony to the effect that based on review of evidence, ""I believe Donna would've been more likely to give consent than not."
- Patricia Wright, a Daughter of Donna Rayhons (called by the Defense): Reported as saying her mother "lit up" whenever Henry Rayhons entered the room.
- The Son and Daughter of Henry Rayhons: Describing their relationship with their father, their father's relationship with Donna, and their own respect for Donna.
As described by the Globe Gazette, there appeared to be especially poignant testimony from one of Donna's daughters, Patricia:
In July, Donna Lou Rayhons asked her daughter, Patricia Wright, if she had seen Henry. “He can’t come anymore,” Wright remembered her mother saying.
“Mom was talking very softly. Much more softly than she usually did and she kept putting her hand to her head. My impression was she was very sad,” Wright told the jury. “Then she would say things like ‘I love him. I love my girls. I love him. I love my girls.’ And she would say that kind of repeatedly.”
As more reports are published from the 6th day of the Rayhons trial, I will try to capture them here with a supplement to this Blog Post.
UPDATE: Here is a link to a more detailed account of the trial testimony on Thursday from The Des Moines Register, explaining that Donna Rayhons had three daughters, including Patricia, from a prior marriage. One of the other daughters testified for the prosecution.
April 16, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 15, 2015
On April 15, the trial proceedings in State of Iowa v. Henry Rayhons continued, after a day without courtroom proceedings.
The day started with testimony from an "Iowa DCI Agent" about a secret recording, two hours in length, that the agent made of his interview with Henry Rayhons on June 12, 2014, during which they discussed the couple's relationship and events surrounding the night of May 23, 2014 (the date of the alleged sexual abuse). Reading between the lines of early news reports, it appears the prosecution was planning or wanted to play excerpts from the recording as part of its case-in-chief, and the defense lawyer took the position that if anything comes in, the whole recording comes into evidence.
Here's a KIMT.com link to a story about this recording, including Rayhon's emotional reaction to the playing of the recording in the courtroom. Here's a link to KIMT's live twitter posts on the trial.
The above was available from the morning session of court. More updates on later proceedings will be posted here, if additional information on today's session becomes available.
Here is an "update" from news media in Iowa, focusing on alleged details from the tape-recorded interview by the DCI (Department of Criminal Investigations) Agent with Henry Rayhons a few days after the night in question. The prosecution appears to be offering segments as evidence that Rayhons "confessed" during the interview, while other segments appear to show his confusion and lack of awareness (or perhaps understanding) about the doctor's diagnosis.
I'm not clear whether this "interview" triggered Miranda warnings, or whether they were waived, but it appears the agent did not tell Rayhons it was being recorded.
More and more lessons seem to be emerging, regardless of the eventual verdict in this case. The more I hear of details from the trial, the more it amazes me how a March 2014 admission to a care facility, that apparently followed the daughters' reasonable concerns about the behavior of the wife, can fail to involve deeper family counseling, discussion and support for both the wife and the husband. This was a dramatic change in their relationship. My head is spinning with all of the missed opportunities for counseling, and, if necessary, mediation.
I'm seeing far more time spent on a criminal investigation about the night of May 23, 2014, than on counseling a 78-year-old man about what it might mean to have a wife in a nursing home in Iowa, where there are Iowa-specific laws about sexual conduct between married partners no longer cohabiting. I'm thinking the wife's daughters could have been assisted by sensitive counseling as well, both before and after March 23. But, I also suspect that there is no Medicare or insurance "billing code" for counseling the family members in this scenario.
And finally, here is late-day coverage by the Des Moines Register from the trial, also focusing on the investigator's recording: Rayhons told investigator he didn't force sex on wife.
April 15, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | TrackBack (0)
Monday, April 13, 2015
On April 13, the fourth day of the trial of State of Iowa v. Henry Rayhons, the prosecution continued presenting evidence in the state's case-in-chief. Here are links to news sources covering the day's events, including:
- From KIMT.com: Testimony of a physician from the care facility regarding his opinion regarding Donna's mental capacity, plus a description of video surveillance of the husband on the night in question, in which "you can see Donna being redirected to her room by Henry, after she had wandered through the halls. Nearly 30 minutes later, Henry is seen leaving the room [and depositing her underwear in a hamper]."
- From KIMT's Twitter feed: Excerpts of testimony from nurses and several staff members at the care center, including a report that a Care Center physician testified that "Just like an infant, a person can respond to stimuli. That doesn't involve any consent given."
- From the Des Moines Register: Reporting that a total of three doctors testified today and that "Dr. John Brady, who is medical director of Concord Care Center, testified that Donna Rayhons had severe dementia caused by Alzheimer's disease. He said any positive reaction to her husband's affectionate advances could be termed a 'primal response,' not a conscious decision to reciprocate."
Further, from the Des Moines Register, an account of the testimony of one of the physicians, a neurologist: "One of the doctors, neurologist Alireza Yarahmadi, disputed any notion that such an Alzheimer's patient could vary greatly in her ability to understand what was going on around her. 'When they're severe, they're going to stay severe,' Yarahmadi testified."
The trial is expected to continue on Wednesday, April 15 (corrected, after learning no proceedings on Tuesday).
April 13, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, April 10, 2015
Web-Cameras in Nursing Homes: Do They Invade Privacy (and Whose Privacy or Interests are Paramount)?
In Philadelphia, the decision of a nursing home to remove the compact video camera attached to a computer owned by a 59 year-old disabled resident has triggered a debate about legal issues associated with the resident's broadcasts. On the one hand, the resident, who had lost the ability to speak and who had limited mobility associated with cerebral palsy, used the camera to facilitate communications with his family. But, to the nursing home:
... where he has lived for decades, the camera was a watchful eye, scrutinizing its staff's every move and capturing images of people whose privacy they're responsible to protect.
Stu's computer equipment was abruptly removed in mid-December, and he was asked to write a note defending his access to it. Family members called it a "cruel hurdle" for a man with limited mobility who selects each letter by pushing the back of his head against a switch.
In another note pleading for his webcam to be returned, Stu, 59, wrote: "WE ARE NOT SPYING ON ANYBODY!" The Sandersons unwittingly became part of a splintered national debate about the role of video cameras in long-term care facilities.
Additional coverage, outlining the delicate case, and suggesting broader issues, is available here and here. Part of the background for the current issues includes a 2012 investigation of suspected abuse of a resident in a different nursing home in Pennsylvania, where a web camera reportedly led to criminal charges against nursing home employees.
April 10, 2015 in Crimes, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 8, 2015
Day one of the sexual abuse trial of State of Iowa v. Henry Rayhons was Wednesday, April 8. News report of the first day here. Coverage of pretrial motions here, with the husband's lawyer describing potential expert testimony about how individuals with Alzheimer's could be capable of consent, while the prosecution argues consent is impossible as a matter of law, making an analogy to sexual contact with a minor or an individual who was unconscious or passed out. More background here.
Today, April 8, is the scheduled day for jury selection to begin for the trial of State of Iowa v. Henry Rayhons. We've written about the charges here and here, but to summarize, Mr. Rayhons, now age 79, was charged last year with "sexual abuse" of his wife, Donna Rayhons (78 at the time), who was residing in a nursing home with Alzheimer's. Iowa law has several different ways in which a "sexual act without consent" between a "husband and wife" can constitute "sexual abuse in the third degree." See Iowa Code Section 709.4(2).
Here, because the husband and wife were not "cohabitating," a conviction would appear to depend on the state's ability to prove that the sex act was with a person suffering from a "mental defect or incapacity which precludes giving consent." It appears the state takes the position that "consent" was impossible because Mrs. Rayhons had been diagnosed with a mental defect, the advanced stages of Alzheimer's. Further, it appears the state expects to prove that her husband was aware of the diagnosis, and further, that at some point before the evening in question, he "agreed" she was incapable of giving consent because of her condition. But at the core, isn't there still an essential question about whether, assuming the state can prove those statutory elements, the law is intended to prevent a married couple from having "consensual" relations because one partner has Alzheimer's?
There apparently was no evidence of physical or emotional damage to Mrs. Rayhons, including no evidence of cries for help or protestations on her part. It appears there will be testimony about the close and loving relationship the couple had before the night in question. It will be interesting -- and sad -- to hear whether there is evidence of a "sexual act."
The Washington Post's Sarah Kaplan has drawn together a history on the case to this point, including details first reported by Bryan Gruley for Bloomberg News. At one point the prosecution tried to get a change of venue for the trial -- a very unusual request from a prosecutor -- which the trial court denied.
I've been hearing from a lot of folks lately about this case, including several medical professionals. I think that after the charges were first announced in August 2014, many people expected the case to quietly disappear, especially as Mrs. Rayhons has passed away, and her husband, then a state legislator, had retired from office.
Yesterday, I had the interesting experience of being interviewed for a KABC radio show in Los Angeles by "Dr. Drew." It was pretty clear that with his background, board certified in internal medicine and a clinical professor of psychiatry at USC, Dr. Drew Pinsky was troubled by the possibility that a medical diagnosis could, without more, be treated as prohibiting legally effective consent to sexual relations. (A guardian was appointed for Mrs. Rayhons, but those proceedings were begun after the night in question.) As Dr. Drew commented during the radio show, even in advanced dementia, there may be core functions that a person continues to be able to enjoy and therefore seek, including eating, drinking and ... intimacy.
April 8, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, April 6, 2015
From KTVZ.COM news in Oregon, a report that the state's top prosecutor, joined by citizen groups, is calling for appointment (and funding) of a special prosecutor to pursue elder abuse cases:
"Ten organizations wrote letters or testified Monday before the Subcommittee on Public Safety of the Oregon Legislature’s Committee on Ways and Means in support of funding for the state's first statewide Elder Abuse Resource Prosecutor. The position would be housed within the Oregon Department of Justice’s Criminal Division, and would increase Oregon’s capacity to stop elder financial and physical abuse by providing training, technical assistance and legal expertise to district attorneys, law enforcement and others who work with seniors.
If funded, Oregon would be the second state in the country with a statewide prosecutor devoted to elder abuse.
'Oregon has specific laws that criminalize the abuse, neglect and exploitation of older adults. However, these cases can be difficult to prosecute. Many involve the victimization of older adults by family members or others with whom they have an ongoing relationship. Victims may also be slow to recognize and report abuse, and reluctant to cooperate with criminal justice professionals,' said Attorney General Ellen Rosenblum.
Elders in Action, the Office of the Long-term Care Ombudsman, AARP, Legal Aid Services of Oregon, the Oregon State Bar, Alzheimer’s Association, the Oregon Department of Veteran Affairs, the Governor’s Commission on Senior Services, Campaign for Oregon’s Seniors & People with Disabilities, and the Residential Facilities Advisory Committee all voiced their support for the new position."
If this position would be the "second" in the country, which state already has a special prosecutor for elder abuse?
Thursday, April 2, 2015
Here is a recent ruling (February 2015), based on a fact pattern that many elder law attorneys will appreciate as both familiar and challenging.
In Runge v. Disciplinary Board, the Supreme Court of North Dakota reversed a disciplinary board "admonishment" of an attorney for "violating" the Rules of Professional Conduct, Rule 1.14. North Dakota's Rule 1.14, addressing representation of a "client with limited capacity," is similar to the ABA Model Rule 1.14 on clients with "diminished capacity."
At issue in the disciplinary proceeding was the lawyer's representation of a 79-year-old man who was residing in a "Care Center." The man wished to leave the nursing home, against "medical advice" and, apparently also in opposition to his daughter's apparent belief about what was best for him. The man had, before experiencing a heart attack, named his daughter as an agent under a durable POA.
By the time the attorney met with the man, the man had been living in the care center for several months. After meeting with the older man (and a female friend of the man), at the man's request the attorney prepared a revocation of the POA. The lawyer explained to the care center that absent someone holding a guardianship or custodianship for the man, and as long as the lawyer was persuaded his client had sufficient capacity, the revocation of the POA was effective and neither the center nor the daughter had grounds to prevent him from leaving.
Unhappy with this outcome, the daughter filed a Disciplinary Board complaint against the attorney, asserting the lawyer had acted improperly by failing to consult with her as her father's named agent, and taking the position her father's "incapacity" for purposes of an earlier "emergency care" statement was conclusive of his incapacity. The Court, however, observed:
"Here no guardianship or conservatorship existed that withdrew Franz's authority to act for himself. Rather, Franz shared his authority to act and he remained free to withdraw the authority conferred under that power of attorney, which, in any event, precluded anyone from making his medical decisions. This record reflects [Lawyer]Runge talked with Franz by telephone and in person to ascertain his wishes before Franz revoked the power of attorney. Runge's recitation of his conversations with Franz does not clearly and convincingly establish Franz was incapacitated in April 2013. This record does not reflect any subsequent attempt to obtain a court-ordered guardianship or conservatorship for Franz, which belies any suggestion that he was incapacitated in April 2013."
Therefore, the North Dakota Supreme Court dismissed the daughter's Disciplinary Board complaint.
Significantly, the Court observes that although the lawyer "could" have contacted the daughter before executing the revocation of the POA, the provisions of Rule 1.14 did not "require" him to do so.
Lots of potential lessons here. A key to the outcome seems to be the lawyer's persuasive testimony, showing the care he took in making the decision to represent the man and to prepare the revocation. As the court observed, "[The lawyer's] assessment of [the man's] capacity was within the range of a lawyer's exercise of professional judgment." This case is another demonstration that lawyers hold a lot of power -- and responsibility -- in matters involving client capacity.
Many thanks to Professor Laurel Terry at Dickinson Law for sending this decision our way.
April 2, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (2) | TrackBack (0)
Monday, March 30, 2015
As Maryland reader Dennis Brezina (and legislative assistant to Wisconsin Senator Gaylord Nelson) helpfully reminded me, with the new Congress there has been a changing of the leadership of the Senate Special Committee on Aging. The new Chair and Ranking Member of the Committee are, respectively, Senators Susan Collins, (R-Maine) and Claire McCaskill (D-Missouri).
This committee maintains a "fraud hotline," for reporting abuse, including financial exploitation, affecting vulnerable seniors. The number is 1-855-303-9470. For more on the Committee's interest in this topic, reports from recent hearings are available on the Committee website.
Thursday, March 26, 2015
Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"
New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts. The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients.
On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules. Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state.
The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd. The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance.
Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities.
The key provisions of new Rule 5.8 provide:
March 26, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)