Sunday, November 22, 2015
As I prepare to speak at a program at the University of Leeds this week on comparative social care systems and legal policies, a headline in The Guardian caught my eye: "Half of UK Care Homes Will Close Unless £2.9bn Funding Gap Is Plugged, Warn Charities." The Guardian reports:
In a joint letter, 15 social care and older people’s groups urge Osborne to use his spending review on Wednesday to plug a funding gap that they say will hit £2.9bn by 2020. They warn that social care in England, already suffering from cuts imposed under the coalition, will be close to collapse unless money is found to rebuild support for the 883,000 older and disabled people who depend on personal care services in their homes.
[Chancellor of the Exchequer] Osborne has already decided to use his overview of public finances to give town halls the power to raise council tax by up to 2% to fund social care, in a move that could raise up to £2bn for the hard-pressed sector. However, the signatories of the letter, such as Age UK and the Alzheimer’s Society, want him to commit more central government funding to social care.
The looming £2.9bn gap “can no longer be ignored”, the letter says. “Up to 50% of the care home market will become financially unviable and care homes will start to close their doors,” it adds. “Seventy-four per cent of domiciliary home-care providers who work with local councils have said that they will have to reduce the amount of publicly funded care they provide. If no action is taken, it is estimated that this would affect half of all of the people and their families who rely on these vital services.”
Osborne’s endorsement of a hypothecated local tax to boost social care comes after intense lobbying behind the scenes and public warnings from bodies such as the King’s Fund health thinktank.
The authors warn the "NHS will be overwhelmed by frail elderly people" in search of care. I was struck by implications that without funding reallocation, England will face staggering hordes of near zombies. There is irony in this imagery, of course, because we spend a heck of a lot of real money on best-selling books, movies and top-rated television shows about fictional zombies, while failing to come to terms with the funding needs for real people. See e.g., this estimate that "Zombies Are Worth Over $5 billion to Economy."
Wednesday, November 18, 2015
Washington State Elder Law Attorney Margaret Dore has shared with us her interesting analysis of "California's Assisted Suicide Law: Whose Choice Will It Be?," published here in JURIST, the on-line platform by University of Pittsburgh Law. She criticizes California's new law as inviting misuse, including elder abuse, observing:
The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death.
ABX2-15 allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.
Further, she notes the potential trauma for family members, citing examples from her practice:
Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
Ms. Dore is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.
Thursday, November 12, 2015
Renowned Cornell educators and specialists in geriatric medicine, Mark S, Lachs, M.D., and Karl A. Pillemer, PhD, have an important review essay in the current issue of the New England Journal of Medicine on "Elder Abuse" (linked above). The authors articulate roles for physicians and health care staff as the first line of help for many older persons who are victims of elder abuse, including the "virtual epidemic" of financial exploitation. From the introduction:
In the field of long-term care, studies have uncovered high rates of interpersonal violence and aggression toward older adults; in particular, abuse of older residents by other residents in long-term care facilities is now recognized as a problem that is more common than physical abuse by staff. The use of interdisciplinary or interprofessional teams, also referred to as multidisciplinary teams in the context of elder abuse, has emerged as one of the intervention strategies to address the complex and multidimensional needs and problems of victims of elder abuse, and such teams are an important resource for physicians. These new developments suggest an expanded role for physicians in assessing and treating victims of elder abuse and in referring them for further care.
In this review, we summarize research and clinical evidence on the extent, assessment, and management of elder abuse, derived from our analysis of high-quality studies and recent systematic studies and reviews of the literature on elder abuse.
One of the perhaps surprising observations in the article is that the "young-old" actually have a higher potential to become victims of abuse than the "old-old," in part because they are most likely to be living under the control of a spouse or adult child, the most often-identified perpetrators.
Further, the authors advise that "the most important tasks for the physician are to recognize and identify elder abuse, to become familiar with resources for intervention that are available in the local community, and to refer the patient to and coordinate care with those resources." The article includes community services and organizations that may provide help to victims.
I was especially interested to see the authors' thoughts on the importance of interdisciplinary teams, especially given my own law school's current involvement in creating a Medical Legal Partnership Clinic. The authors write:
The most promising response to the complex nature of cases of elder abuse has been the development of interprofessional teams. Evidence suggests that interprofessional teams, also referred to as multidisciplinary teams, consisting of physicians, social workers, law-enforcement personnel, attorneys, and other community participants working together in a coordinated fashion, are the best practical approach to assisting victims.
Our thanks to "devoted reader" Professor Dick Kaplan, University of Illinois Law, for providing us with early notice of this important article.
Wednesday, November 11, 2015
In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice." His overview provides:
Our Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future. The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice. In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system. In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system. Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations. Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.
As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.
Tuesday, November 3, 2015
A recent article in the Wall Street Journal focuses on challenges in state courts to how guardianships operate and the role of courts in appointment and oversight of guardians. Titled "Abuse Plagues Systems of Legal Guardianships for Adults," the on-line version of the article carries the subtitle of "Allegations of financial exploitation and abuse are rife, despite waves of overhaul efforts." The article uses extensive details from just two guardianship caess, one in the state of Washington involving a 71 year-old woman, and one in Florida involving an 89 year-old "mother," to develop its theme of financial exploitation and abuse, pointing to critics that say "many elderly people with significant assets become ensnared in a system that seems mainly to succeed in generating billings."
The article includes statements from National Academy of Elder Law Attorneys president elect, Catherine Seal, providing a contrasting view of properly-managed guardianships. She is quoted as saying, "The worst cases that I see are the ones where there is no guardian."
Arizona is identified in the article as a state that has adopted safeguards on unnecessary or abusive fees "by establishing fee guidelines" in 2012. Of course it did so after a significant 2010-2011 investigative news series by the Arizona Republic in Maricopa County that exposed a series of cases in which court permitted fees and delays significantly impacted the alleged incapacitated persons' financial resources.
The WSJ article, I think, can be criticized for using just two cases of conflict to dramatize allegations of systemic problems, characterized as exploitation. We need to talk about systemic reform needs by looking beyond single case reports
It seems clear, however, if you follow the pockets of deeper investigations from across the nation, including recent challenges in Florida and Nevada where allegations focused on an array of court-permitted problems, including delays generating more costs, or overly cozy relations between court-appointed guardians and courts, or the absence of monitoring systems, that there are larger systemic issues in need of watchful eye and, in certain jurisdictions, critical examination and reform.
My thanks to Marilyn Berquist and Rick Black for recommending the WSJ article.
Tuesday, October 27, 2015
The National Center on Elder Abuse (NCEA) has a really cool fact sheet on APS. Adult Protective Services: What You Must Know, provides a concise explanation of APS, reporting, FAQs and client protections. Great information in a 2 page document! This would be a good resource for students to gain understanding of APS.
Thursday, October 15, 2015
The Financial Insurance Regulatory Authority (FINRA) distributed a press release on October 15, 2015. FINRA Solicits Comment on Proposed Rules Addressing Financial Exploitation of Seniors announced the release of Regulatory Notice 15-37 which seeks
comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing amendments that would require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer's account. In addition, FINRA is proposing a new rule that would permit firms to place a temporary hold on a disbursement of funds or securities when there is reasonable belief of financial exploitation, and to notify the trusted contact of the temporary hold.
The comment period closes November 30, 2015. The regulatory notice is available here.
The executive summary explains
FINRA seeks comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing: (1) amendments to FINRA Rule 4512 (Customer Account Information) to require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account; and (2) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit qualified persons of firms to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers.
Tuesday, October 13, 2015
In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs. But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"
A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients. In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem. The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.
In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."
The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."
As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available."
However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent. Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.
Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."
The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest. Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.
The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care."
The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."
October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 8, 2015
Healthline News ran a story that made me sad, even though I know these scams happen. Growing Kind of Elder Abuse: Marrying Seniors for Their Money ran on September 15, 2015. The article quotes a California attorney whose firm handles financial exploitation cases who "[said] marrying for money is a form of elder abuse that is spreading throughout the United States." The attorney noted that this type of financial exploitation case is often unreported and hard to uncover. These "sweethart scams" happen to both sexes about equally. The article quotes the deputy director of the National Center on Elder Abuse (NCEA) that
[W]hile these scams can take many forms... a common scenario is that the elders have experienced a recent loss, such as the death of a spouse, and they find themselves befriended by someone younger.
“If children aren’t nearby or the person is isolated and depressed, they’re more vulnerable to this attention.... The difficult thing is that if the older adult has capacity to make decisions then they are entitled to do what they want with their money.”
The article provides some examples of actual cases and the variation among the states on capacity to marry as well as what actions to take if the elder is a victim of this scam.
Wednesday, October 7, 2015
I previously posted a new article from Consumer Reports on the cost of financial exploitation. Consumer Reports also ran an article about whether elder abuse is preventable. Lies, Secrets, and Scams: How to Prevent Elder Abuse. Seniors and their families lose billions of dollars each year to heartless fraudsters. Learn how you can help ran September 28, 2015. The article opens with a victim of the grandparent scam. Looking at the proliferation of financial exploitation, the article notes
Estimates of the crime’s frequency vary. A 2010 survey of seniors by the nonprofit Investor Protection Trust projected that 1 in 5 seniors had been taken advantage of financially. A study last year in the Journal of General Internal Medicine found that 4.7 percent of Americans—about 1 in 20—reported that they had been financially exploited in their later years. The study provided perspective: If a new disease struck that same percentage of older Americans, researchers wrote, “a public health crisis would likely be declared.”
The article discusses why elders are targets "[o]lder people’s vulnerabilities—including isolation, loneliness, generally trusting natures, relative wealth, and in some cases declining mental capabilities—make them ideal quarry for con artists. Even those whose cognition is intact can be swayed if they’re stressed or depressed, or recently have lost a loved one." The article paints a bleak picture regarding projection, noting that s "as baby boomers age, the pool of potential victims will expand, with assets ripe for the pickpocketing." The article reviews the reasons why victims may not report the exploitation, how the perpetrators work a scam and why some victims are exploited multiple times.
The article covers some successes when the victims (or families) report the crime and initiatives to fight elder abuse, mentioning specifically the DOJ elder justice initiative. The article concludes with photos and summaries of stories of 8 victims and a list of agencies that may help.
Tuesday, October 6, 2015
Does the amount $3 billion shock you:? What about $36 billion? According to an article in Consumer Reports, Financial Elder Abuse Costs $3 Billion a Year. Or Is It $36 Billion?, the exact amount is unclear. Here's how the $3 billion figure came about, according to the story:
When Consumer Reports recently reported on elder financial fraud, Lies, Secrets, and Scams: How to Prevent Elder Abuse, we used the number $3 billion. It comes from a study published in 2011 by the MetLife Mature Market Institute, in collaboration with the National Committee for the Prevention of Elder Abuse and the Center for Geronotology at Virginia Polytechnic Institute and State University. We rounded up from that study's estimate of $2.9 billion annually....
We chose that figure because a number of experts we interviewed thought it was a credible figure. But they—and an author of the study—admitted to us when we first reported it a couple of years ago that the figure probably represents the tip of the iceberg. The figure is probably far larger than that.
We have all heard the tip of the iceberg analogy with the number of cases of elder abuse, since we know that elder abuse cases are under-reported. The article goes on to explain the $36 billion figure which came from TrueLink which "projected that financial elder abuse costs families more than $36 billion a year," Their study used a more expansive view of financial exploitation, including fraud and scams as well as financial exploitation. The article notes that Investor Protection Trust estimates that 20% of elders have been victims.
The author of the article explains the title.
Though the article focuses on financial exploitation at the hands of strangers, the headline encompasses abuse by all types of con artists, including family members and people the senior knows. When discussing stranger-initiated abuse, we couldn't arrive at a figure that made sense to us. Experts I consulted through a listserve used by professionals in the elder-abuse prevention and treatment community couldn't agree on a figure themselves. However, several professionals I interviewed said they were comfortable with saying it was in the "billions."
The point of this difficult exercise is that no really one knows how big the problem is. But clearly, it's huge. And until seniors feel comfortable reporting their victimization—and there's a standard way to define it and a central place to report it—we'll never know the total impact. Here's hoping that day comes, so the individuals working to help victims and prevent the crime can get the attention and resources they deserve.
Assign this article to your students. It illuminates a number of the issues in these cases. Regardless of whether the total is $3 billion or $36 billion, the numbers are shocking.
Monday, October 5, 2015
Illinois adopted a new law, Public Act 098-1093, effective on January 1, 2015 that assigns a "presumptively void" status to bequests made to non-family caregivers, if the transfer would take effect upon the death of the cared-for person. The law applies only to post-effective date bequests that are greater than $20,000 in fair market value. The statutory presumption can be "overcome if the transferee proves to the court" either:
1. by a preponderance of the evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to receive under ... a transfer instrument in effect prior to the transferee becoming a caregiver, or
2. by clear and convincing evidence the transfer was not the product of fraud, duress or undue influence.
The law only applies in civil actions where the transfer is challenged by other beneficiaries or heirs.
(Fun) Spoiler Alert: The new law plays a clever "starring role" in the Fall 2015 season premiere of The Good Wife. Let's see how many of our law students were watching!
October 5, 2015 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
DOJ's Elder Justice Initiative & Office for Victims of Crimes, along with the Corporation for National and Community Service announced the creation of the Elder Justice Americorps. According to the website
[E]lder Justice AmeriCorps, a new grant program to provide legal assistance and support services to victims of elder abuse, neglect and exploitation and to promote pro bono capacity building in the field. This effort will expand a partnership between the two agencies, which includes justice AmeriCorps, a legal aid program launched in 2014 by the Department of Justice and CNCS to serve vulnerable populations.
The Elder Justice AmeriCorps program, which is intended to complement existing Office for Victims of Crime grants to support the development of legal assistance networks providing comprehensive, pro bono legal services for victims of crime, will consist of a single grant to an intermediary organization that will support approximately 60 full-time AmeriCorps positions for each year of the two-year program. Interested applicants can review the Notice of Funding Opportunity at http://www.nationalservice.gov/build-your-capacity/grants/funding-opportunities/2016/americorps-state-and-national-grants-fy-2016#FGSAAA.
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 22, 2015
I was having a conversation recently with our elder consumer protection fellow at the College of Law about remedies for financial exploitation, so this headlline from US News & World Report Health certainly got my attention. Vanishing Retirement: the Hidden Epidemic of Financial Exploitation focuses on the ramifications of being a victim of financial exploitation.
Many Americans look forward to the day they'll be able to put their weekly routines aside and enjoy retirement. It takes decades to realize this goal – after putting kids through school, paying mortgages, making car payments and covering myriad other expenses, all while saving for a time when Mondays no longer mean a return to work. So much time and effort goes into building the nest egg – the target of so many schemes in recent years as more and more older Americans face financial exploitation.
Once someone’s income starts being depleted, many things have to be given up. Discretionary items fall to the wayside first: vacations, hobbies and leisure activities. One may lose the ability to leave an inheritance. Even basic travel becomes difficult when a person can’t afford auto insurance and fuel. Then, paying for basic utilities becomes a challenge, leading to late fees and threats power will be shut off.
Personal health becomes compromised as medication costs overtake retirement income. Even a person’s ability to stay in his or her own home becomes threatened, due to the loss of sufficient funds to pay for rent, taxes or water.
The article mentions Mr. Mickey Rooney's testimony before the Senate Special Committee on Aging. I still remember his testimony, especially him noting if it could happen to him, it could happen to others. The story turns to the lack of recognition that exploitation (or other types of elder abuse) is taking place. The article notes that there are many professionals who could be in a position to spot financial exploitation (such as a bank teller or pharmacist).
It should be a community responsibility to get to know our seniors, engage them regularly and recognize and address concerning changes. That’s why, in many states, mandated reporters for elder abuse include any individual, from the physician to the janitor working in a nursing home, who has contact with an older person. This acknowledges we all have the opportunity to identify abuse.
It is so easy to pass off these clues and say, “It’s not my responsibility,” or “Someone else will take care of it.” But addressing the suspicion of wrongdoing can save a person from Mickey Rooney’s fate.
Wednesday, September 16, 2015
Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act (UGPPA). University of Missouri Law Professor David English is Chair of that committee, with many good people (and friends) on the working group.
In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"
Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology. There was general agreement that the revision should attempt to incorporate person-first language. For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined). The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.
I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically. It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.
September 16, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 15, 2015
As we have tracked recently on this Blog, in a number of states, including Florida and Nevada, serious questions have been raised about the roles of guardians for disabled and elderly persons, and the extent to which there should be public oversight of guardians, especially "paid" guardians, including public guardians, "professional" guardians or "private" guardians.
In Florida, newly proposed legislation, Senate Bill 232 (filed in September 2015) would seek to clarify state oversight of all guardians, following on the heels of amendments to Florida state law enacted in mid-2015. Florida's legislature may take up the latest bill early in 2016, according to media reports. Key provisions in the bill include:
- renaming of the current office of "public guardianships," with expanded duties and responsibilities, to create the "Office of and Professional Guardians;"
- addition of findings about the potential need for a "public guardian" where there is "no willing and responsible family member or friend, other person, bank, or corporation available to serve;"
- a requirement that "professional" guardians "shall" register with the state;
- directions to establish a comprehensive system for receipt and state action on complaints made about professional guardians.
From reading SB 232, it seems to me there may be some attempt to appease the concerns about the potential for overregulation of so-called "professional" guardians, as new language in Section 744.2001 requires development and implementation of a new "monitoring tool to ensure compliance of professional guardians with standards" set by the Office, but this "monitoring tool may not include a financial audit " as specified in another section of the law (emphasis added).
Funding will be needed to make expanded oversight effective.
September 15, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 9, 2015
We recently learned of the important role played by Matthew Andres, Director of the Elder Financial Justice Clinic at the University of Illinois School of Law, in convincing the Illinois legislature of the need for a clear civil remedy for seniors and disabled persons who are victims of financial exploitation.
Earlier this year, the Illinois legislature approved Public Act 99-0272, amending existing law that defined the crime of financial exploitation, to provide a specific civil remedy, one that would no longer be tied to (or require) a criminal prosecution. Effective on January 2, 2016, the new Illinois law provides:
Civil Liability. A civil cause of action exists for financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section. A person against whom a civil judgment has been entered for financial exploitation of an elderly person or person with a disability shall be liable to the victim or to the estate of the victim in damages of treble the amount of the value of the property obtained, plus reasonable attorney fees and court costs.
In a civil action under this subsection, the burden of proof that the defendant committed financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section shall be by a preponderance of the evidence. This subsection shall be operative whether or not the defendant has been charged or convicted of the criminal offense as described in subsection (a) of this Section. This subsection (g) shall not limit or affect the right of any person to bring any cause of action or seek any remedy available under the common law, or other applicable law, arising out of the financial exploitation of an elderly person or a person with a disability.
Professor Andres was the author of a white paper on the need for the changes to prior law, and the resulting bill was supported by AARP. For more, see the news from the University of Illinois website here. Great work, Matt!
Thursday, September 3, 2015
The Journal of Elder Abuse & Neglect (JEAN) is a great resource. It is the official journal of the National Committee for the Prevention of Elder Abuse (NCPEA). The Journal is published 5 times/year by Routledge. If you aren't familiar with JEAN, the website explains its purpose. It is:
the peer-reviewed journal that explores advances in research, policy and practice, and clinical and ethical issues surrounding the abuse, neglect and exploitation of older people. This unique forum provides state-of-the-art research and practice that is both international and multidisciplinary in scope. The journal’s broad, comprehensive approach is only one of its strengths — it presents research case studies, practice and policy issues, exploratory studies, commentary, and reviews on a wide range of topics designed to increase the knowledge base of scholars and professionals.
Recently JEAN's "editors' choice" article collection was posted online with free access! According to the website, "[t]hese articles were selected by the Journal of Elder Abuse & Neglect Editorial staff – Editor-in-Chief Karen Stein, PhD. and Associate Editor Sharon Merriman-Nai, MC – as key research to the field. Routledge Journals is pleased to offer FREE ACCESS to these articles until December 31, 2015." Subscription information is available here.
Wednesday, September 2, 2015
UCLA's Center for Health Policy Research has issued its August 2015 report on "The Hidden Poor," using county-by-county data to demonstrate that "federal" definitions of poverty are not a sufficient measure of true poverty for seniors. What are the "hidden poor?" The UCLA report explains: "The Hidden Poor are defined as those who have incomes above 100 percent of the Federal Poverty Level (FPL), but who do not have enough income to make ends meet as calculated by the Elder Index."
A recent article in the Sacramento Bee highlights key components of the analysis:
More than 300,000 elderly Californians are officially poor, as measured by the federal government, but their numbers triple to more than 1 million when the “hidden poor” are counted, according to a new study from UCLA’s Center for Health Policy Research.
National poverty guidelines say that for a single elderly adult living alone, the poverty line is $10,890 a year, but UCLA’s “elder index” puts it at $23,364 in California.
Those “hidden poor” Californians over 65 tend to be Latino or black. Their greatest concentrations are found in rural counties with overall low income levels, topped by Imperial County, where more than 40 percent of the elderly are the hidden poor....
The study said population groups with especially large proportions of the hidden poor include grandparents raising grandchildren, elderly with adult children living at home, and single elders.
Accurate measurements of poverty are core to planning of resources for any age group, including seniors. How does your state account for needy seniors?