Sunday, April 24, 2016

"It's Always About the Money" - One Man's Work to Change Oversight of Guardianships

Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25  minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond.  (You may have to give this time to load, as it is an embedded video file).  

 

 

For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse." 

 

April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, April 21, 2016

The "Unbefriended" Need Trustworthy Representatives, including Rep Payees

Someone asked me recently about "alternatives" for law students interested in helping older persons or disabled adults.   I said, in essence, "figure out how to start and operate a cost-effective, soundly-managed, and reliable, nonprofit rep-payee organization in your community."  (And understand that you won't make a fortune, but you can make a good living with a well-run nonprofit!)   

Coinciding with my off-the-cuff advice is a white paper recently released by Justice in Aging, with the assistance of funding through the Borchard Center Foundation on Law & Aging.

In "Ways to Meet the Growing Need for Representative Payees," Justice in Aging recommends that the Social Security System partner with organizations, including attorney organizations, to establish a "sustainable program to help recruit representative payees who are reliable and suitable to perform all of the required duties" of a rep-payee for those receiving federal program benefits but who often are unable to manage the money soundly. In some instances they may have no easy access to reliable family or friends.  The "unbefriended," who, in turn, may be vulnerable to those with bad intentions:

Aging demographics and the predicted increase in cognitive deficits and other chronic conditions are expected to create a dramatic need for representative payees. For many of these seniors, family members and friends may be unavailable to serve in this capacity. SSA should think broadly about the groups of people eligible to serve as payees and then create standards for appointment, require a more in-depth level of training, and increased accountability.

Justice in Aging closes by urging that SSA's "recruitment efforts should be geared towards eligible individuals with legal experience as well as other fields with relevant backgrounds, such as social workers and religious community leaders."

April 21, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Social Security | Permalink | Comments (0)

Monday, April 18, 2016

Pennsylvania Joins 40 Other States In Authorizing Tax Exempt "ABLE" Accounts

Pennsylvania lawmakers seem to be on a roll this month, following several months of log jam over the 2015-16 state budget.  The legislature passed SB 879 on April 13, and Pennsylvania Governor Wolf has now signed the law, enabling creation of tax-exempt savings accounts to benefit people with qualified disabilities. From the Governor's Office:

The accounts can be used for a wide-range of disability-related expenses including health care, housing, and transportation without jeopardizing eligibility for important programs on which individuals with disabilities must often depend.

 

“My administration is committed to promoting and encouraging independence, community-based supports and services, and employment for individuals with a disability,” said Governor Wolf. “Pennsylvanians with disabilities can now achieve greater fiscal self-sufficiency, without the risk of impacting their eligibility for benefits. I am proud to sign this bill today and continue our work to help individuals with disabilities stay in their homes and communities.”

U.S. Senator Bob Casey led efforts to win Congressional passage of the federal ABLE Act, which authorized states to establish tax-exempt savings accounts modeled on section 529 of the Internal Revenue Code, which recognizes state-established savings programs to meet future college expenses. Pennsylvania Treasury has been administering the Pennsylvania 529 program since 1993 and will administer the ABLE Program.

From NDSS's list of states with "ABLE Legislation," it can be seen that Pennsylvania's action makes it approximately the 41st in the nation to "enable" Able.  Over the weekend, Pennsylvania also became the 24th state to legalize medical marijuana.  

A helpful summary of the use of ABLE accounts, along with other tools that may assist a broader range of ages, including special needs accounts, is provided by Pennsylvania Elder Law guru, Jeff Marshall, here.  

April 18, 2016 in Estates and Trusts, Federal Statutes/Regulations, Social Security, State Statutes/Regulations | Permalink | Comments (0)

Friday, April 15, 2016

What's the Connection Between "Living Wills" for Banks vs Humans?

Lately, I've been hearing and seeing the phrase "living wills" in mainstream news sources such as the New York Times, but at first the context was confusing to me because the media were speaking and writing about Big Banks, not humans. So, how did it come about that following the 2008 financial crisis, regulators started requiring large financial institutions to have "living wills?"

The Wall Street Journal explains in What You Need to Know About Living Wills [in the context of Big Banks]:

A living will is a document from a financial firm that describes how it would go through bankruptcy without causing a broader economic panic or needing a bailout from taxpayers. The largest U.S. banks have filed several versions of them since the 2010 Dodd-Frank law, which ​required living wills from financial firms ​that were judged to pose a potential risk to the broader economy. The documents are also known as resolution plans. “Resolution” is regulatory parlance for dealing with a failing financial firm.  Living wills are separate from other regulatory requirements, such as annual “stress tests” that measure whether could banks survive a severe recession.

I've not yet determined who first came up with "living wills" to describe what Dodd-Frank, at 12 U.S.C. Section 5361(d), refers to as "resolution plans." Without accurate, full disclosure, addressing all aspects of the financial institution's operations, such plans -- by any name -- seem unlikely to achieve the goal of greater market stability.  As another WSJ writer points out, the utility of Big Banks' living wills comes if not just regulators, but the Bank executives, are paying attention:

The point of the living wills, like the stress tests, is to sit banks down and make them comb through their businesses in excruciating detail, with a focus on grim aspects like liquidity crunches and operational risks in bankruptcy. A useful result of the living wills is that, if they're done correctly, they give regulators a good overall picture of how a bank works, how money flows between its parts, what its pressure points are, and how it responds to crisis. But a much more important result is that, if they're done correctly, they give bankers themselves that same overall picture: They force a bank's executives and directors to understand the workings of the bank in a detailed and comprehensive way. And if they're done incorrectly, that's useful too: They let the regulators and bankers know what they don't know.   

The full article on this point is titled, with nice irony, Living Wills Make Banks Think About Death.  There, a least, is one similarity in living wills for humans and banks.  

April 15, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases | Permalink | Comments (2)

Wednesday, April 6, 2016

Massachusetts Court Rules MBTA Retirement Fund Records Are Subject to State Public Records Law

A specialized area of "law and aging" is accountability for retirement investments, including public employee pension funds.  In Massachusetts there has been a long feud between the Boston Globe media company and the Massachusetts Bay Retirement Authority (MTBA) Pension Fund over access to pension records, especially after the loss of some $25 million in employee retirements assets following the collapse of a hedge fund holding MTBA money.  Last month, a Massachusetts judge rejected key arguments by the MTBA's that the records in question were not subject to state public records law:

"The Court will ALLOW the Globe's motion for summary judgment and DENY the Retirement Board's cross-motion. The Retirement Board's preliminary assertions that the Supreme Judicial Court has already resolved the central question of statutory interpretation in the Board's favor, and that in any case the Globe may not press its claims because it failed to join other necessary parties, are both incorrect. On the merits, the Court concludes that the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions. The Board's assertion that the 2013 statutory amendment only applies to records created after its effective date is also incorrect."

For more on the reasoning, see Boston Globe Media Partners, LLC v. Retirement Bd. of Massachusetts Bay Transp. Authority Retirement Fund, 2016 WL 915330 (Superior Ct. Suffolk County, Mass, March 9, 2016). 

See also Boston Globe media reports, including Judge Calls for Open MBTA Pension Files, detailing some of the related allegations by whistleblower Harry Markopolos and Boston University finance professor Mark Williams.  See also a consulting firm's March 9, 2016 Report for the MBTA that concluded MBTA had accurately reported accounting data on the pension funds during the years in question. 

April 6, 2016 in Estates and Trusts, Property Management, Retirement, State Cases | Permalink | Comments (0)

Monday, April 4, 2016

Accountability in Guardianship & Conservator Cases: Latest from Nevada

Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis.   As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses.  As reported by the Las Vegas Review-Journal in an April 1, 2016 article:

An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.

 

District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.

 

Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.

 

But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.

For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices."  The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.

April 4, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, March 29, 2016

Family Finances, POAs, and Telephone Help Lines in the Third Age

Roz Chast's memoir of life with her parents as they aged, Can't We Talk About Something More Pleasant?, uses humor to explore the complicated issues that can arise when aging parents and their adult children try to address physical frailty and financial complexities in the "third age" of life.   Another look, equally realistic and also ruefully humorous, comes from William Power, writing for the Wall Street Journal in "The Difficult, Delicate Untangling of Our Parents' Financial Lives."   Thanks to the WSJ for making this an  unlocked article for digital access! 

Power begins with that ever-humbling attempt to use "help lines" to solve problems by phone:

“No, no, no, don’t transfer me to her again,” pleads my wife.  It is a typically frustrating moment in our family crisis, one that many grown children will have to face, ready or not: We are people in our 50s who are unraveling the finances of parents who can no longer do it themselves.

 

My wife, Julie, is on the phone with the company where her 82-year-old dad had once worked, trying to change the direct deposit of his pension checks to a bank closer to the assisted-living home where he and his wife now live, which is near us in Pennsylvania. Again and again, she is transferred to the person in charge, “Rose.” And every time, the same recording: “This number has been disconnected.”

Power's account is punctuated by practical advice for others, including the importance of teamwork, involving both family members and others, in tackling the issues, as well as the use of key document-based tools, including Powers of Attorney, or as he stresses, "Repeat after Me: POA, POA, POA."  

My thanks to Amy Bartylla, a long-time friend, for this article referral.

 

March 29, 2016 in Advance Directives/End-of-Life, Consumer Information, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0)

Friday, March 25, 2016

Filial Friday: Family Caregiving & Standing Issues for Family Members

The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.  

The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws."  She concludes:

The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.

In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.  

In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."  

The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment.  "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a).  Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."    

For more see In re Skinner, ___ Fed Appx. ___, 2016 WL 850950 (3d Cir. 2016). 

March 25, 2016 in Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 21, 2016

Florida Governor Signs Second Wave of Reform Laws for Public and Private Guardians

On March 10, 2016, Florida Governor Rick Scott signed into law additional rules for the state's use of guardians. The move comes on the heels of a first wave of reforms enacted in 2015

The two waves of legislation follow media reports and public protests in specific locations in Florida, including Palm Beach and Sarasota. The latest law establishes a new state-wide Office of Public and Professional Guardians, and includes directions that the Office establish a system for appointment and monitoring of trained professionals, to serve where necessary as limited guardians, guardian advocates or plenary guardians.  Such "public" guardians are intended to be a last option, when family members are inappropriate, unable or unwilling to serve. 

In addition to the legislative actions, there are reports of court-directed changes to address potential conflicts of interest that could reduce the incentive for critical review and oversight.  For example, in Palm Beach, media reports put a spotlight on relationships between judges and lawyers in that county and especially on one judge's spouse, a lawyer who often received court-appointments and who was criticized for billing and accounting practices in some cases where she was the court-appointed guardian. 

For earlier reports on Florida's guardianship history, see this Blog's report on "Florida to Consider Establishment of Office of Public and Professional Guardians."

For a longer perspective on the recognized need for more effective state systems for guardianship review, see the GAO report (11-678), released in 2011, that warns that "Given limited funding for monitoring, [state] courts may be reluctant to invest in [better] practices without evidence of their feasibility and effectiveness."  See also GAO 2006 report (06-1086(T)), titled "Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People."

Further, for findings and recommendations made to the Uniform Law Commission following a summit in 2011, see University of Missouri Law Professor David M. English's report, "Amending the UGPPA to Implement the 3rd National Guardianship Summit."

March 21, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 18, 2016

Does California's New "Revocable Transfer on Death (TOD) Deed" Increase Risk of Elder Abuse and Estate Costs?

Colleagues in California recently shared with me information on California's adoption of statutory recognition of "Transfer on Death Deeds" or TODs under AB 139.  The law was signed by the Governor on September 21, 2015 and became effective on January 1, 2016.  The law includes "simple" forms, both for establishing the "revocable" transfer of title, and for any "revocation" of such a deed.  Proponents of the legislation cite simplicity and low cost as advantages of using such deeds. The legislative history for the law explains:

The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.

Critics of the law, including California Advocates for Nursing Home Reform (CANHR), warn that despite the "simple" label, the appropriate use of such transfers in estate planning is anything but simple, and such deeds pose another opportunity for undue influence and manipulation of elders.  

The spring issue of CANHR's Advocate newsletter (available via subscription, following a "donation" to the organization) further comments:

It is important to note that thousands of California citizens who are 55 years of age or older and who have recently signed up for health care under California's Medic-Cal expansion program will now have their estates subject to Medi-Cal recovery when they die. If their homes were transferred before their deaths, transferred to an irrevocable trust or if they transferred the property and retained an irrevocable life estate (another cheap, but effective way to transfer property) there will be no estate claim on the home.  But, because the [new law's] TOD is revocable and the transfer and the transfer of the property under a TOD does not occur until the death of the owner, these TODs are subject to estate recovery, which means that those same low-income elders, who are likely to execute TODs will also be more likely to be on Medi-Cal and thus [inadvertently] subject their estates to recovery.

CANHR is "embarking on a campaign to educate consumers about the impact" of the new California law.

March 18, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Housing, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, March 16, 2016

A Window Into New York Legal Fees For Guardianship Proceedings

A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees.  In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.  

The court noted the guardianship was part of larger family disputes following a divorce.  As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian.   The parties stipulated that the fees could not exceed $50,000.  That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP). 

The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just. 

As required by New York Law, the court made detailed findings.  The court concluded:

  • "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding."  The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
  • "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services.  However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."

The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."

March 16, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0)

Monday, March 14, 2016

Al Jazeera America Reports on "Guardianship Fears" in Nevada

Here is a 12 minute account of two families involved in older person guardianships, where the court appointed a single, non-family member as guardian in Clark County, Nevada.  The presentation is by Al Jazeera America, aired for the first time in March 2016:

 

The events in Nevada have sparked larger concerns about "guardianship abuse."  The video is both disturbing and frustrating, especially as we hear primarily from family members in the presentation. There are hints of important, underlying legal issues, including:

  • adequacy of notice to alleged incapacitated persons (AIP) prior to any court proceeding;
  • adequacy of notice to family members of the AIP
  • proper use of guardians ad litem
  • availability of legal counsel to the AIP
  • what procedural requirements exist for a finding of incapacity
  • what definition is used for incapacity
  • whether limited guardianships are used, and if not, why not
  • what training, if any, is given to guardians
  • what accounting methods are used for review of conserved funds

The important topics revealed in the news reports seem ripe for in-depth research by objective academics, including law school academics. Anyone looking for that "hot" topic for next summer's project?  

For earlier Elder Law Prof Blog posts on this topic see:

If the Issue is Accountability, Which is Better? Power of Attorney or Guardianships?

WSJ: Are Guardianship Systems Under Critical Review? 

Removal of Private Guardian is Latest News in Challenge to Nevada Elder Guardianships

March 14, 2016 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 11, 2016

Featured Articles from ABA Commission on Law & Aging's Bifocal

From the most recent issue (issue No. 3) of Bifocal, the electronic journal published by the ABA Commission on Law and Aging, links to several interesting feature articles:

Creating Effective Agreements for Payment of Family Caregivers


When lapses in memory or physical issues start to affect activities of a loved one's daily living, such as cooking, eating, bathing, or paying bills, it's time to evaluate their needs and living situation. As the affected loved one's care needs increase, attorneys can assist with drafting caregiving/personal care agreements.

The Social Security Administration’s Representative Payee Program


To ensure that all beneficiaries can receive their payments and make proper use of funds, Congress has granted the Social Security Administration (SSA) the authority to appoint third parties, known as representative payees, to receive and manage payments when the beneficiary is unable to do so. With Alzheimer's disease and other cognitive impairments on the rise, more seniors find themselves unable to manage their own benefits. SSA is currently exploring additional ways to identify seniors who may be in need of a representative payee. When working with seniors or caring for loved ones, please be aware of the following information about the rep payee program to help identify seniors in need.

Performance Data on Emeritus Pro Bono Practice Rules


Emeritus pro bono practice rules can be effective tools for recruiting volunteer attorneys. Specifically, by reducing some of the licensing burdens for attorneys who agree to limit practice to pro bono only, these rules are designed to encourage pro bono service. Whether these rules are actually effective in encouraging pro bono service, however, is an empirical question. To answer that question, a short online survey was done in 2014 returning modest data. In 2015 the ABA Standing Committee on Pro Bono and Public Service--in collaboration with the ABA Commission on Law and Aging--launched a project to collect more complete data on participation, the number of hours, and what recruitment methods appear to be most successful.

March 11, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Social Security | Permalink | Comments (0)

Tuesday, March 8, 2016

Continuing Legal Education Courses on Alzheimer's Disease

The promotional material catches your eye: "Every 67 seconds someone in the U.S. develops Alzheimer's Disease.  5.3 million Americans have the disease."

I'm seeing more programming being offered to practicing lawyers on dementia-related issues generally and specifically about Alzheimer's Disease.  An example is an upcoming program (June 2016) from the Pennsylvania Bar Institute, describing a program on Alzheimer's Disease: "From diagnosis to legal documents, everything you need to counsel your client."  The speakers for the day include three medical professionals, Paul J. Eslinger, PhD from Penn State Hershey Medical Center, Barry V. Rovner, M.D. from Thomas Jefferson University in Philadelphia, and Oscar L. Lopez, M.D., from University of Pittsburgh.

For more about the program, see PBI's website here.  

 

March 8, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Health Care/Long Term Care, Programs/CLEs | Permalink | Comments (0)

Monday, March 7, 2016

The Casey Kasem Legacy? States Adopt "Notice, Communication and Visitation" Laws

In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.  

Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.  

To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:

  • Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause."  Changes to the law became effective on July 1, 2015.
  • Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications.  For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
  • California, Assembly  Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail."  The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care.  For more on the California legislation, signed by California  Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.

These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect.  It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.

Continue reading

March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, February 29, 2016

Genworth Announces "Refocus" for Sales for Its Insurance Products

Genworth is one of the three surviving companies still offering Long-Term Care Insurance.  So, when it reports plans for the future, that is important.  In February 2016 Genworth's CEO released a letter saying, "We will be refocusing our sales efforts to develop solutions that meet the financial challenges of aging, including individual and group long term care (LTC) insurance, and over time, the development of other products and services that meet this growing need."

Genworth’s strategic priorities remain to improve the performances of our businesses and increase our financial and strategic flexibility — while keeping our promises to policyholders. To support these priorities, Genworth has decided to suspend sales of all our traditional life insurance and fixed annuity products. Our decision to suspend new sales of these products in no way diminishes our commitment to providing service to our existing 2.8 million life and annuity policy and contract holders and their beneficiaries.

Exactly what this means for financing options for long-term care remains to be seen.  

McKnight's Senior Living News sees this as a move in the right direction, as discussed here.  

February 29, 2016 in Consumer Information, Estates and Trusts, Health Care/Long Term Care | Permalink | Comments (0)

Friday, February 5, 2016

Is It Possible to "Care for Mom When You Live Far Away"? -- ElderLawGuy Shows How

My friend and mentor Jeffrey Marshall, a/k/a ElderLawGuy on Twitter, once again uses practical experiences to illustrate how "planning in advance" for the possibility of emergencies makes sense, particularly as our loved ones age.  He tracks the aftermath of an always dreaded "fall," an event in the life of an older person that too often can precipitate a downward spiral in the absence of a holistic care plan plan:  

[M]y wife and I were thousands of miles away. How could we get her the immediate help that she needed?

 

Fortunately, the help was available. My wife and I had previously hired a professional care manager, Bonnie, in the town where gramma lives. As soon as we got the call from the emergency room we contacted Bonnie and filled her in. She swung into action at once. She visited gramma and evaluated her condition. She implemented a system of caregivers to stay with gramma. She set up a Monday morning appointment with gramma’s physician, attended it with her, and reported back to the family.

 

Bonnie served as the family’s eyes and ears and local expert and was able to ensure that gramma got the care and support she needed when she needed it.  

For more details, read Jeff's blog post, "Caring for Mom when you are far away."  I know that in my own family, who also lives far apart, over the course of my regular visits home I probably visited 10 different care providers with my mother or sister.  This was during the year before we actually made the decision for my father.  I kept saying "we can make these decisions without an emergency." It became my mantra. Not every emergency needs to be an emergency....  

February 5, 2016 in Advance Directives/End-of-Life, Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, February 2, 2016

Illinois Law Prof. Kaplan Offers "Boomer Guide" to Defined Contribution Plan Distributions

Prolific scholar Richard Kaplan, from Illinois Law, has a new article with a clever title. Here's a taste from the abstract for What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans:” 

Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.

This very practical article appears in NYU's  Review of Employee Benefits and Executive Compensation, Chapter 4, for 2015. 

 

February 2, 2016 in Current Affairs, Estates and Trusts, Ethical Issues, Property Management, Retirement | Permalink | Comments (0)

Friday, January 29, 2016

Radio Interview on Filial Responsibility Laws in the U.S. (by South Korea)

Following up on my post last week about the surge of interest in filial responsibility laws in South Korea, including the alternative concept, "filial duty contracts," recently I was interviewed as part of a English-language radio news broadcast in South Korea.  The host asked for a comparative, international perspective. I thought the host's reaction to hearing about U.S. cases was interesting -- suggesting that lawyers (or perhaps law professors) aren't sufficiently tuned into the family emotions involved in the topic!   Here's the podcast (about 10 minutes) from the live radio program.  

January 29, 2016 in Estates and Trusts, Ethical Issues, International | Permalink | Comments (1)

Monday, January 25, 2016

Science, Elder Law and Genetic Counseling...

I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania.  For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded. 

I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling.  A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function.  In looking at age-related issues, the authors note:

 

Genetic testing is beginning to reveal information regarding susceptibilities to the dis­eases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of conse­quences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some con­ditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.

 

Other reactions to a high-risk test result may be more aggressive than diet and exer­cise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.

 

Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or mar­riage, based on perceived risk? Earlier in this article it is explained that an individual’s geno­type rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.

In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.  

For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox  and Rachel Koff, Licensed Certified Genetic Counselor. 

January 25, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Estates and Trusts, Ethical Issues, Retirement, Science | Permalink | Comments (0)