Monday, July 6, 2015

California State Bar Offers On-Line Guide for "Seniors and the Law"

SeniorsEnglish2015COVERThe State Bar of California offers an on-line "guide for maturing Californians," available in PDF format.  This is an updated, 2015 version. At first I was a bit dubious, as the length is just 12 pages and the print is small. However, on closer look (and with the help of that little built-in magnifying class for reading PDF documents on line), I found it fairly comprehensive and a good starting place. It works not just for seniors but the whole family. 

Written in a logical Q & A format, often starting with "yes or no" answers before offering a more detailed explanation and suggested resources, the brochure covers topics such as:

 

  • What is Supplemental Security Income?
  • Can my landlord evict me for any reason at all?
  • Can I install grab bars, lower my counters or make other needed modifications over my landlord's objections?
  • How is Medi-Cal different from Medicare?
  • How can I help ensure that my affairs will be handled my way if I become incapacitated?
  • If my elderly mother gives away her assets, will Medi-Cal pay for a nursing home?

In addition, the brochure describes more subtle topics such as how "assisted living communities," may differ (and be covered by different regulations ) than "continuing care retirement communities," or why "living trust mills" are something to avoid.  It warns that insurance brokers and agents other investment advisors are prohibited in California from using "senior specific" certificates or designations to mislead consumers. 

According to the July 215 issue of the California Bar Journal, the senior guide is available in both Spanish and English, although I could only find the English version on-line.  Free print copies are available for order (although donations to offset costs are accepted!)  

Thank you to Professor Laurel Terry for sharing this resource! 

July 6, 2015 in Books, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Medicare, Programs/CLEs, Social Security, State Statutes/Regulations | Permalink | Comments (0)

Thursday, July 2, 2015

Germany Makes Int'l Claim for Filial Support Against U.S. Relative, Seeking Nursing Home Costs

Imagine this fact pattern:   You are a young professional, just getting your career started (still making payments on college and graduate degree loans, and only dreaming of the day you could make a down payment on a house). You receive an official-looking letter. The letter advises that under another state’s law, you may have a statutory duty to pay monthly “financial support” for a father who is unable to support himself, following a stroke that has put him in a public nursing home. Fairly stunning news, yes? 

Now imagine that the father in question is someone you have seen only a handful of times since the age of about 10, when he and your mother divorced.  The custody case that took place in the father’s home state was a tough one.  Review of the evidence shows the father was either unable or unwilling to provide support for the family while they were together.  Your father borrowed money from your mother’s family. He was manipulative, even to the point that he once kidnapped you as a young child and held you away from your mother. Ultimately, the court in that other state agreed that your mother should have sole custody. Your father never paid alimony to your mother or support for you as a child.  Those college degrees were earned without your father’s support of any kind. 

Tough to believe that authorities in the other state could possibly believe, even if they work in one of the few U.S. states that occasionally enforce claims made by nursing homes for filial support, that any support or maintenance award under these circumstances would be “fair.” 

Add one additional complexity.  Admittedly, it is a big one.  The “state” requesting monthly payments is not next door to where you live, or even in the same country.  It is across the Atlantic.  The state is Germany. And you gave up your citizenship as a German long ago. 

I have been given permission to write about this set of facts by the American adult child in question. Perhaps this post may generate additional legal assistance from someone with experience in a cross-border claim.  These are the facts as I understand them.

Germany has its own version of what I call a "filial support" law, although it is far broader than Pennsylvania's controversial law.  The German Civil Code at Sections 1601-1615, provides that when a person is "incapable" of maintaining himself, "lineal relatives are under an obligation to maintain" the individual.  If one family member in the line of descent cannot pay in whole or part, the claim goes to the next. 

The amount of any maintenance obligation is usually set according to the family member's "ability to pay," with a court having the power to decide what amount that might be if a request is not paid voluntarily. In their first letter, the German authorities warn that failure to cooperate can be a criminal offense; in a second letter, they seek records of annual earnings, but only certain expenses (rent, insurance and student debt), from the American.

Continue reading

July 2, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)

Tuesday, June 30, 2015

Long Island "Elder Law" Attorney Pleads Guilty to Stealing $797K from Clients

On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients.  In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man.  It was alleged she used client funds to pay office, payroll and personal expenses. 

The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August.  According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.

June 30, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases | Permalink | Comments (0)

Sunday, June 28, 2015

In Divorce of 90+ Year Olds, Nebraska High Court Confirms Award of Alimony to Pay Nursing Home Fees

In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care.  The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both.  Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.

The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards.  The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:

In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.  The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.

 

Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony. 

 

As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.

In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues.  For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.

June 28, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Cases | Permalink | Comments (0)

Friday, June 26, 2015

5-4: US Supreme Court Holds States Must License and Recognize Same Sex Marriages

Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages --  and recognize them as valid marriages -- for same sex couples.  Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.

Here's a link to the Supreme Court's full opinion in Obergefell v. Hodges, released today, June 26, 2015.  Interestingly, June 26 has also hosted past landmark rulings affecting marriage rights.

UPDATE:  in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile.  For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging. 

June 26, 2015 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (1)

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.

 

On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.

 

"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 25, 2015

ABA Journal: Delaware is First State to Grant Access to Digital Assets for Fiduciaries

From the July issue of the ABA Journal, news that "Delaware Leads the Way in Adopting Legislation Allowing Estate Executors Access to Online Accounts."   The article details the use of model legislation in permitting "Fiduciary Access to Digital Assets," and related or pending legislation in other states. 

Hat tip to Professor Laurel Terry -- visiting in Hawaii -- for being the first to send this our way! 

June 25, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (1)

Friday, June 19, 2015

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

Plus, historian Hendrik Hartog provides his own commentary and response! 

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Wednesday, June 17, 2015

California Clarifies Nature of "Takings" Actionable Under Elder Abuse Law

In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes.  In Bounds v. Superior Court, the appellate court set the stage for the important ruling:

Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.
 
These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....
 
As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c). 
 
Therefore the appellate court permitted the case to go forward against the alleged abusers, who were alleged to have frightened the aging Bounds into selling property at a bargain price.
 
More recently, Sara Colon, one of the lawyers represented the elderly Ms. Bounds, and Catherine Eschbach, a law student at Pepperdine Law School, collaborated on an article for the Los Angeles Lawyer magazine, published in April 2015.  In Out of Bounds, they explain the significance of the Bounds case, including its application in the context of predatory lending schemes. 

June 17, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 16, 2015

Northern Ireland Advocate Calls for Overhaul of Adult Social Care Legislation

During the last two years I have had the fascinating opportunity to work on two major studies of laws and government policies affecting older persons and their families in Northern Ireland, studies initiated by the Commissioner for Older People for Northern Ireland (COPNI). The earlier study looked at safeguarding systems.  Now the second study has been made public, with Northern Ireland Commissioner Claire Keatinge using the work to recommend major reforms of Adult Social Care laws in her country. COPNI Claire Keatinge Launch of Call for Reform of Adult Social CareThe formal launch of her "call for change" occurred on June 16 in Belfast. 

Two of my four research colleagues, Dr. Joe Duffy (far left, who led the research team) and Dr. Gavin Davidson, (far right) both of Queens University Belfast, were present for the launch, with Joe giving introductory remarks to the audience of government officials and community stakeholders.  The fourth member of our team is Dr. Subhajit Basu of the University of Leeds in England.  Our research evaluated government policies and law in more than ten nations, looking for legal trends, best practices and cutting edge social care programs.

Significantly, in addition to recommending a comprehensive legislative framework and funding structure to coordinate services for all adults in need of assistance, one key recommendation announced by Commissioner Keatinge (left center above) and highlighted in our investigative report, is to implement a "Support Visit" for any interested person age 75 years or older, by an appropriately trained health and social care worker.  This recommendation, which draws upon Denmark's successful experience with a "preventative home visitor" program, would create an opportunity for a psychosocial dialogue aimed at advance planning.  The goal is to help individuals and family members anticipate needs in the event of functional impairment, thus reducing the need for crisis planning. 

I've become a big fan of Commissioner Keatinge; she is clear, creative, realistic, and determined to see Northern Ireland become a world leader in recognizing not just the needs but the contributions made by older adults.  She does so from a platform of respecting older persons' contributions, citing research to demonstrate that over the next several decades, older adults will contribute more than £25 billion to the Northern Ireland economy through formal work, volunteering, and their roles as caretakers for both adults and children.

It had been an honor for me to work on this social care reform project.  The work has given me -- and Dickinson Law students serving as research assistants, Ryan Givens and Tucker Anderson (who used his ability to speak and translate Danish to help in our field research) -- important new perspectives on proactive ways to identify and address potential needs triggered by age-related changes in demographics.  Frankly, in the U.S. we spend far more time (and arguably too much time) on issues of medical care.  This report is a reminder that many health-care crises could be avoided or mitigated through more proactive implementation of social care networks.

For more on the Duffy, Davidson, Basu, Pearson report (June 2015), see Review of Legislation & Policy Guidance Relating to Adult Social Care in Northern Ireland.

For more on Commissioner Claire Keatinge's call for reform, see Commissioner Calls for Overhaul of Adult Social Care.

See here, for more on Denmark's approaches to services, communication and programming for older people.

Special thanks to Ryan and Tucker for their research, proofreading, editing and translation skills! 

June 16, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Retirement, Science, Social Security, Statistics | Permalink | Comments (0)

Friday, June 12, 2015

Wills: Don't Wait Until Tomorrow...

I enjoy reading newspapers when I travel as they provide another window into what is on the minds of local people.  Last week, I came across what appeared to be a regular column addressing questions of law, with the title: "Wills: Don't Wait Until Tomorrow."  The article began:

"Often completion of a will is seen as a bad omen, as acceleration of a fact that should naturally occur but, you hope, not soon. However, the [proper] execution of this document, in addition to giving possessions according to one's wishes, can prevent future litigation."

Sound advice, correct? The opening was followed by descriptions of procedures for use with informal or holographic wills versus formal wills that are executed before a notary. What intrigued me, however, was this advice on how to avoid litigation over estates was in Granma, the "official newspaper of the Central Committee of the Communist Party of Cuba." While visiting Cuba for the first time last week as part of a small Penn State Faculty group tour, I was surprised to learn there was more private ownership of property than I had expected in Cuba.  Now I would be interested in knowing more about how and why any disputes over bequests or inheritance of privately owned assets or property tend to arise in Cuba.

In Cuba, as in other Latin American countries, lawyers can have a specific role as a "notary" in formalizing documents including wills; this role is not the same as the more ministerial role of  notaries as witnesses in the U.S.

It appears that in Havana, execution of a will can also include filing it with a central Registry, or, in other provinces, with an office in the local court. To preserve confidentiality, the testator has the option of registering only certain basic data, such as his or her name and date of completion of the will, and the identity of the notary, rather than the full content of the bequests.  

The translation of this article from its original Spanish, written by Onaisys Fonticoba, is mine -- and is admittedly a bit rough, even with the help of Google Translate.  Granma is also published on the internet in several languages, including English, although the editions are not identical. Granma, the name of the newspaper, is a tribute to the name of the "yacht" used by Fidel and his fellow fighters when he returned to Cuba in 1956.

June 12, 2015 in Estates and Trusts, International, Property Management | Permalink | Comments (0)

Thursday, May 28, 2015

Ohio Successfully Uses Local Property Tax Levies to Supplement Senior Services

In the PBS documentary airing in May and June, Caring for Mom & Dad, the second half of the program focuses on policy initiatives to support services for older adults. One interesting highlight is Ohio's use of local property tax levies that directly supplement senior services.  Begun in the early 1980s as a referendum initiative in just one county, similar programs have been adopted by voters in counties or municipalities in more than 70 of Ohio's 88 counties. That is an amazing history, especially given the usual hostilities about "new" taxes. Voters appear to recognize that the levies permit unique flexibility to design programs that meet the needs of their community's seniors, whether in rural or urban areas, such as transportation services or home care subsidies.  The revenue now generated in Ohio, more than $125  million per year, exceeds federal grant funding under the Older Americans Act nationally. 

Ohio's inspiring "Lady of the Levy," Lois Dale Brown, is mentioned in the PBS documentary, and she's profiled, along with additional details about the senior service levies, on the Ohio Department of Aging's website. 

As a reminder, WPSU-TV is airing Caring for Mom & Dad at 8 p.m. this evening in Pennsylvania, followed by a one hour "Conversations Live" open to incoming calls, texts and emails.  Details available here. 

May 28, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Film, Health Care/Long Term Care, Housing, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Can You Get A Divorce if You Have Dementia? That's the $10M Question in South Florida

From our roving reporter (okay, actually from my great Dickinson Law colleague, Professor Laurel Terry) we get headline news in Palm Beach, Florida and a front-page question about whether an older man has the capacity necessary under that state's "unique" law to seek an end to his later-in-life second marriage.  You won't be surprised to read that money is involved in this lawsuit: 

Sitting in his oceanfront condominium in Palm Beach, [87-year old] Martin Zelman can’t immediately name the president of the United States, isn’t sure what year it is and admits he can’t remember the month or the date of Valentine's Day. But he knows he wants to divorce his wife [age 80], whom he married in 2000, 7 years after they began dating.

 

Or does he?  That's the $10 million dollar question that surrounds Zelman vs. Zelman, a unique and legally complex divorce case wending its way through Palm Beach County Circuit Court.

 

While the issues raised are intensely personal, they lay bare the ways adult children could use the court system to manipulate prenuptial agreements designed to protect spouses in second marriages. They also expose quirks in Florida's divorce laws, particularly a little known caveat that imposes a three-year waiting period in cases where one of the spouses has been declared mentally unfit.

For more, see Can Florida Man with Dementia File for Divorce? by Jane Musgrave for the Palm Beach Post. This story brings to mind regular reader Jennifer Young's recent, wry comment on a separate post, strongly recommending "shacking up" to avoid late-in-life second guessing of second marriages.  All kind of sad, isn't it?

May 28, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, May 25, 2015

Modern Day Coverture? Medicaid Eligibility Rules' Harsh Effect on Married Women

University of South Dakota Assistant Professor of Law Thomas E. Simmons has an intriguing article in the summer 2015 issue of Hastings Women's Law Journal.  From his article, "Medicaid as Coverture," here are some excerpts (minus detailed footnotes)  to whet your appetite:

Not long ago, married women possessed limited rights to own separate property or contract independently of their husbands.  Beginning in the nineteenth century, most of the most serious legal impediments to women enjoying ownership rights in property and freedom of contract were removed....

 

Three twenty-first century developments, however, diminish some of this progress.  First, later-in-life (typically second) marriages have become more common.... These types of couples were not the spouses that reformers had in mind in designing inheritance rights or other property rights arising out of the marital relationship....

 

Second, perhaps as a product of advocacy for women's property rights, and perhaps out of a larger social remodeling, women's holdings of wealth have made significant advances.... [But] women of some wealth (in later-in-life marriages, especially) may in fact find themselves penalized by the very gender-neutral reforms that were designed to help them; especially, as will be unpacked and amplified below, when those reforms interface with Medicaid rules.

 

Third, beginning in the late twentieth century, the possibility of ongoing custodial care costs became the single greatest threat to financial security for older Americans.

As practicing elder law attorneys experience on a daily basis, Medicaid eligibility rules, despite the so-called "Spousal Impoverishment" protections, can impact especially harshly on married women as the community spouses.  They are often younger and thus will have their own financial needs, frequently have been caregivers before being widowed, but their personal assets may still be included in the Medicaid estate for purposes of determining their husbands' eligibility. This article takes a critical, interesting approach to that problem.  

May 25, 2015 in Discrimination, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, Social Security | Permalink | Comments (1) | TrackBack (0)

Wednesday, May 20, 2015

Massachusetts Case Demonstrates Significance of Contracts in Senior Living Options

This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston.  Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living.  Their organization has some 800 individual members, representing a majority of the communities in the state. 

MILCRA Annual Meeting 2015In 2012, MLCRA was successful in advocating for passage of amendments that substituted "shall" for "may" in the laws governing key disclosures to be made to prospective and current residents. 

My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick.  Here the "contract" trumped the statute. 

In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.

Continue reading

May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Before there was "Elder Law"? Jeff Marshall, Esq. remembers...

ElderLawGuy Jeff Marshall has always been a bit ahead of his time, including being among the first to recognize that aging can carry with it a distinct set of legal issues.  Not every lawyer is equipped to deal with families facing dramatic changes, whether in terms of temperament or legal knowledge.  Jeff constantly stays on top of new developments, in both law and technology.  For example, read here how Jeff uses "tweeting" as a tool, to help him stay current on the law, and engaged with the wider world.  Jeff has often inspired me, from the moment of my first "big" meeting with him here in Pennsylvania almost 20 years ago, at a little conference on a very cold winter day in Wilkes Barre. It is hard to believe, but he's been a specialist in elder and estate law for 35 years! Here's part of the tale, from the Sun-Gazette.com:

When attorney Jeff Marshall returned home in 1980 his vision, according to a news release, was to found a law firm that would serve the needs of older adults. A native of Lock Haven, Marshall had graduated from Stanford Law School in 1972 and had remained in California for the rest of that decade. By 1980 he was ready to return to his roots in Pennsylvania.

 

At the time, there was no such thing as an "elder law firm." But Marshall recognized that his older clients faced a complicated array of legal, financial, and health care issues, the news release said. Their legal planning needed to be coordinated with non-legal concerns to best protect their dignity, comfort and self-determination. So he set about putting together a team of professionals with backgrounds in law, nursing, social work, and care management who were able to meet his client's broad needs.

 

Thirty-five years later the seeds he planted have grown into one of the most respected elder law and estate planning law firms in Pennsylvania with four offices in Williamsport, Jersey Shore, Wilkes-Barre and Scranton....  The firm celebrated its 35th anniversary at its 19th Annual Professional Updates held on May 6 in Williamsport and May 7 in Scranton.

Congratulations -- and thank you -- Jeff!

May 20, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2015

"Woman in Gold" was also a Woman with a "Will" (Or Maybe Not)

Woman_in_goldHave you seen the movie Woman in Gold?  Lots here for lawyers, law professors, and students to discuss -- which may be why reviewers often seem to mention the movie is, hmm, a tad slow moving.  There is nothing like watching a lawyer research in dusty libraries to frustrate a significant percentage of the viewing public waiting for the next explosion or car crash.

At the heart of the movie version of the tale  is a document, relied on by Viennese authorities as their provenance for a renowned painting's "rightful" place in Austria.  Is it or isn't it a "will" executed by Adele Bloch-Bauer? She was the subject of Gustav Klimt's shimmering painting, and the question is whether the document controls the ultimate fate of the painting. Helen Mirren is her usual marvelous self, portraying the 80+ year-old niece of Adele and a member of a Jewish family targeted by Nazi hatred.

Here's a nice follow-up to the movie story, courtesy of the New York Times, Patricia Cohen's The Story Behind ‘Woman in Gold’: Nazi Art Thieves and One Painting’s Return.

May 11, 2015 in Estates and Trusts, Film, International | Permalink | Comments (0) | TrackBack (0)

Signs of the Times? (Part 1 from Belfast)

St, Geirge's Market Free Range EggsLast week I was visiting in Ireland, and specifically in Belfast, Northern Ireland, where I was giving a workshop on comparative contract law for students at Queen's University Belfast in its new J.D program When I visit the city, I always try to save a day for a "dander" around the town, which is wonderfully walkable. 

St. George's Market is a favorite spot -- and in fact last year while I was visiting, Queen Elizabeth was there too, a definite surprise, if you know the history of politics in this city.

There is an interesting collection of stalls, that change a bit with the season and the day.   

 

 

Transactions always come with a smile. You can buy fresh fish (I swear I saw one wink at me), fresh eggs, or your funeral plan!  St. George's Market Your Funeral Plan

  St. George's Market Transaction 2015  

 

  

 

 

 

  

 


 

May 11, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, International | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 5, 2015

GAO Reports to "Congressional Requesters" on Advance Directives

Here we go again.  Another hard look at why a significant percentage of the public has not signed some form of advanced directive.  In April 2015, GAO issued Advance Directives: Information on Federal Oversight, Provider Implementation, and Prevalence, its response to requests made by Senators Bill Nelson (D-Fla), Johnny Isakson (R-Ga), and Mark Warner (D-Va) who were inquiring into the role of the Centers for Medicare and Medicaid Services (CMS) in overseeing providers, including hospitals and nursing homes, that are mandated by law to maintain written procedures and provide information about advance directives. 

Perhaps it is just me, but whenever legislators raise this topic, it seems to me the not-so-subtle underlying message is "why aren't people agreeing in writing to forego aggressive health care as they near the end of life so that we can save more money on health care?"  

In any event, the report:

  • documents current practices for offering living wills, health care powers of attorney, and various alternatives such as DNR and POLST forms (including the potential for some confusion among staff members of health care providers about "who" should be handling the education and signing process),
  • refers to a major Institute on Medicine study (Dying in America, 2015) on a similar topic, and
  • concludes that there is no "single" point of entry for execution of advanced directives. 

As the GAO team observes, "[t]herefore, a comprehensive approach to end-of-life care, rather than any one document, such as an advance directive, helps to ensure that medical treatment given at the end of life is consistent with an individual’s preferences."

Hat tip to Karen Miller, Esq., in Florida for the link to the latest study and report. 

May 5, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (1) | TrackBack (0)

Thursday, April 30, 2015

Thinking About Fiduciary Duty As A Core Concept for "Elder Law"

I tend to think of "Elder Law" as a subset of "Laws and Policies of Aging."  Given what appears to me to be a steady increase in public concern about ways in which some older persons are exploited financially, it occurs to me that we may be at a point where "fiduciary duty" is becoming a central -- perhaps even the central -- concept for the future practice of Elder Law, overtaking even Medicaid planning and end-of-life health care planning. Seasoned practitioners already know that the "million dollar question" in Elder Law is "who is my client?" -- a question intimately tied to carrying out fiduciary duties as an attorney.

Along that line, I've been digging into my stack of "must read" books, a stack that is always a threat to my safety as it gets taller and taller no matter how fast and furiously I read. I'm very much enjoying a book by Boston University Law Professor Tamar Frankel titled, simply enough, Fiduciary Law (Oxford University Press, 2011). 

Early in the book, the author, whose teaching and research interests include corporation governance and regulation of financial systems, proposes a definition of "fiduciary relationships," which I find both intriguing and conducive to discussion.  I don't think it is taking too much away from her full book, to repeat the four features Professor Frankel proposes as triggering fiduciary duties.  She writes:

Continue reading

April 30, 2015 in Books, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement | Permalink | Comments (1) | TrackBack (0)