Thursday, July 28, 2016
This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes. The articles in the Spring 2016 issue include:
- The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
- Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
- The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
- Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
- Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
- Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and
- Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah
In my review of the articles, I would have liked to see more discussion of the potential expectations of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care. In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement. This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning. Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Friday, June 10, 2016
Filial Friday: Georgia Supreme Court Rules that No Equitable "Right of Access" is Created by Filial Support Law
Adult daughter Tamara Williford filed a petition for equitable relief in February 2015, seeking a Georgia court's order that her father's current wife must allow her access to her father. Williford alleged that her father, Tommy Brown, was in poor physical health, unable to leave his home, but in good mental condition. She said she had talked with him regularly by telephone and in person, until his wife prevented her from doing so.
Apparently Mrs. Brown, Tommy's wife, was named as the only defendant in the lawsuit, and responded by denying Williford was a biological child, denying her husband was in poor health, and denying that he wanted to see Williford.
In June 2016, the trial court dismissed Williford's petition, and she took a timely appeal to the Georgia Supreme Court. Oral argument was held in February 2016.
In Williford v. Brown decided May 9, 2016, the Georgia Supreme Court (pictured above) unanimously affirmed the dismissal, finding that there was no statutory or other legal grounds alleged that would support the "equitable remedy" sought by Ms. Williford. Specifically, the court rejected the argument made on appeal that Georgia's version of a filial support law, OCGA Section 36-12-3, provided grounds for relief. That statute says:
The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.
The court concluded that this section "does not purport to confer on adult children a right to unrestrained visitation" with parents. "Moreover, Ms. Williford did not allege in her petition that Mr. Brown is a 'pauper,' much less that she believes that Hart County has or will ever have to maintain him at county expenses and then pursue an action against her."
In a footnote to the ruling, the court observes that the daughter "did not alleged and does not claim on appeal" that the wife prevented her husband "from leaving his home or communicate with persons other than Ms. Williford." Therefore, the court said it was not necessary to address whether a theory of "general habeas corpus" where a person was allegedly held "incommunicado illegally and against his will."
This seems like a very sad case. One Georgia elder law attorney suggests that "if the ruling in this case disturbs you, then perhaps it is a good time to call your local legislator."
June 10, 2016 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, June 3, 2016
"He Died with Guns in His Closet." That's the provocative (and effective) title of an upcoming continuing legal education program (3 credits) in Pennsylvania. The half-day Pennsylvania Bar Institute program will be offered live in Pittsburgh on June 8, and both in-person (Mechanicsburg) and by webcast/simulcast on June 16. The program will address "new regulations for gun trusts that go into effect on July 13, 2016;" acquisition, possession disposition and transportation of firearms; how people become disqualified to interact with firearms; gun trusts; and the National Firearms Act's implications for trust and estate practitioners.
Last fall, I was at a statewide meeting of continuing care community residents in the Southeastern part of the US, and I admit I was startled when residents raised the topic of "what to do about guns" in their CCRCs.
Here's a link to the CLE details. My thanks to Pennsylvania practitioner and great estate planning adjunct professor Vicky Trimmer for alerting me both to the changes in the law and this upcoming program.
Wednesday, June 1, 2016
The latest issue of Experience, the magazine of the Senior Lawyers Division of the ABA is devoted to elder driving. Eight articles are devoted to the issue of driving. The magazine also includes articles on estate planning, technology and ethics. The entire issue is available here. Links to individual articles are also accessible from here.
Monday, May 30, 2016
It's Memorial Day. Perhaps you are sharing a picnic with family and friends. You might need a topic to spice up the conversation amid potato salad and barbecued hot dogs, right? How about this...
Recently I've been hearing from lawyers who are commenting on recent telephone calls or emails they've received from a West Coast TV promoter, inquiring as to whether they have clients who might be interested in appearing on a new television reality show. Or, maybe the lawyer would want to participate? Here's a description of the proposed show from one of the lawyers who was contacted by a rep of the show:
"It will feature family members disputing who will inherit heirlooms, historical artifacts, or valuable collections. The show will provide a professional mediator free of charge to help the family members resolve the dispute."
I guess I shouldn't be surprised. We've had some 20 seasons of "Judge Judy" and her brethren. I have a vague memory, going back to childhood, of an early iteration of "Divorce Court" -- with lots of shouting. While living in the U.K., I used to occasionally catch a show about searches for missing heirs and another about family confrontations with "hoarders." (And oh how sad that last one was.) So, I guess it isn't a huge jump to a show that arguably sensationalizes family fights over old family "stuff." Perhaps it is even a logical next step from Antiques Roadshow, the hugely popular, and fairly dignified, PBS program.
By coincidence, just as I had finished typing the above paragraphs, I received my own communication from a developer of the proposed show. Turns out that the show is pitched as a "bigger" concept than just estate disputes. Mark Dalbis, from Atlas Media Corporation, and who seems like a nice guy in his email, writes:
Thursday, May 26, 2016
Plaintiffs' Class Certified in Dispute over LTC Insurance Coverage for Care by "Managed Residential Communities" or "Assisted Living Services Agencies"
As we've reported fairly often on this Blog (see e.g., here, re California litigation), the long-term care insurance (LTCI) industry has been battling disputes on many fronts. One of the fronts is whether insurers can deny benefits to pay for care provided in settings other than "skilled nursing facilities." On March 1, 2016, a federal court in Connecticut granted class certification to estates and policy holders who are challenging denial of coverage for stays in "managed residential communities" (MRCs) in Connecticut or to cover services provided through "assisted living services agencies" (ALSAs). In Estate of Gardner v. Continental Casualty Company, 2016 WL 806823, the court agreed the plaintiffs had satisfied the class certification requirements for "numerosity," commonality, and typicality of issues, as well as establishing grounds to argue "imminence of injury" to support a claim for injunctive relief:
While Plaintiffs do seek monetary relief, it appears to the Court that what they primarily seek is forward-looking relief. Plaintiffs purchased long-term care policies, presumably with the expectation that they would utilize their coverage over a long term. Any adequate remedy would have to ensure that they could obtain coverage for claims prospectively. For that, an injunction is required. Moreover, Plaintiffs leave no ambiguity about the content of the injunction they seek: an end to Defendant's alleged policy of denying claims for assisted-living facilities across the board. This is exactly the type of relief Rule 23(b)(2) was designed to facilitate. Because Plaintiffs' proposed Rule 23(b)(2) class satisfied all of the requirements of Rule 23, certification is proper.
For more on the background of the Connecticut case, see "Connecticut class action accuses insurer of denying assisted-living claims."
Tuesday, May 17, 2016
I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams." Always a good opportunity to find a few treasures that escaped my closer attention during the academic year. And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.
What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.
To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.
These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue. (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.)
Sunday, April 24, 2016
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
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!)
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."
Monday, April 18, 2016
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.
Friday, April 15, 2016
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.
Wednesday, April 6, 2016
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.
Monday, April 4, 2016
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.
Tuesday, March 29, 2016
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
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."
Monday, March 21, 2016
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."
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.
Wednesday, March 16, 2016
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."
Monday, March 14, 2016
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: