Tuesday, May 15, 2018

Pennsylvania Considering Changes to Guardianship Laws for 2018 Passage

Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session.  I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July.  The pending legislation includes:

  • Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth.  On April 16, 2018 this bill was referred to the Senate Appropriations Committee.  

I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons.  The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications. 

  • House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."  

While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth.  In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional.  Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.

Continue reading

May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Monday, May 14, 2018

Which States Mandate Certification or Licensure of Guardians?

As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018.  The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos.  In-person training programs are also under development, on a county-by-county basis. 

I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.  

Nisa also provided links to the new Maryland Rules on mandatory training for guardians:  Md. Rules 10-108, 10.205.1, and 10-304.1.  In addition, these rules refer to  Guidelines for Court-Appointed Guardians of the Person and Property.  Thank you, Nisa! 

The state of Washington also is developing a program for "lay/family (non-professional) guardians training."  

County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.  

Other states have also been active in establishing education and testing for prospective or current guardians.  Several states' programs have been developed following allegations of improper appointments or lack of oversight.  We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.   

A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes  described in legislation or court rules as "nonprofessional guardians."   Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons.  Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members. 

The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules.  As depicted on the map, some states have adopted  CGC certifications as the state standard for approval of "professional" guardians.  In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.   

The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians. 

You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.  

May 14, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, May 8, 2018

Do You Have Enough Retirement Savings? -- Here's An Encouraging Report

Most commentaries on funding for retirement years point to insufficiency of savings or other resources.  But here's a different take, drawing upon a recently published report from the Employee Benefit Research Institute (EBRI) that suggests retirees with significant savings are often exercising restraint in spending,  From the St. Louis Post-Dispatch on The Myth of Outliving Your Retirement Savings:

In the EBRI study, those with the most savings — a median of $857,450 shortly after retiring — still had $756,300 two decades later. The decrease amounts to just 11.8 percent of the original sum.

 

The largest drop in retirement nest eggs, 24.4 percent, was among those with the least savings, or a median of $29,975.

 

Frugal behavior is consistent with research led by Anna Rappaport for the Society of Actuaries. She and her team found that most people do not plan for retirement or know what they should spend, but they adapt — even when shocked by high dental bills or a roof repair.

 

What can devastate financially are divorce, caring for a mentally or physically ill adult child who cannot work, and long-term care expenses, according to the actuarial society’s research.

 

Still, debilitating health care costs are far more rare than people fear, according to the EBRI research. Half of retirees face no nursing home expenses because Medicare covers short recoveries after hospital stays and Medicaid can help when resources run out.

 

The medical annual out-of-pocket spending for 90 percent of retirees is just $2,000, and the big nursing home costs over $87,000 hit only 10 percent of people living longer than 95, according to the EBRI study.

For the EBRI study itself, see the April 2018 report on Asset Decumulation or Asset Preservation?  What Guides Retirement Spending? 

May 8, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, Retirement, Statistics | Permalink | Comments (0)

Sunday, May 6, 2018

Maryland Offers On-Line Orientation Video for Prospective Court-Appointed Guardians

As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts.  In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based  "orientation program" before they are appointed guardian of a minor or disabled person.  The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts.   Here is a link to the video.  

What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court.  I think that many courts are still struggling with their  own roles in this regard, but here the lines of responsibility are explained clearly.

The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but  without making the information so overwhelming that good candidates decline the role.  The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights. 

In my opinion, this type of video is a good first step.  But just a first step.  

May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, May 3, 2018

21st Annual Elder Law Institute in Pennsylvania, July 19-20, 2018, Open for Registration

Hard to believe, but this summer will mark the 21st annual Elder Law Institute in Pennsylvania  It functions as both a gathering of the clan and an educational update, and I always walk away with new ideas for my own research and writing.  On the second day of the event (which runs July 19 and 20), Howard Gleckman will give the keynote address on "Long Term Care in an Age of Disruption."  Doesn't that title capture the mood of the country?!  

Practical workshops include:

  • Using Irrevocable Trusts in Pre-Crisis and Crisis Planning - Ms. Alvear & Ms. Sikov Gross
  • Guardianship for Someone Who Is 30/30 on the MMSE (Advanced Mental Health Capacity Issues) - Ms. Hee & Mr. Pfeffer
  • Medicaid across State Lines: Pennsylvania vs. New Jersey - Mr. Adler
  • Medicaid Annuities in Practice - Mr. Morgan & Mr. Parker
  • Business Succession Planning for Elder Law Practices - Ms. Ellis, Mr. Marshall, Mr. Pappas & Ms. Wolfe
  • Social Security Disability: What Elder Law Practitioners Need to Know - Mr. Whitelaw
  • Drafting Trusts for Beneficiaries with Behavioral Impairments and Mental Health Problems - Mr. Hagan & Dr. Panzer
  • Being a Road Warrior Attorney: Staying Organized and in Touch While Out of the Office (ETHICS) - Ms. Ellis

Mark your calendars and join us (Linda Anderson, Kimber Latsha and I are hosting a session on Day 1 about "new" CCRC issues).  Registration is here.  

May 3, 2018 in Books, Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Contrasting Views on "Peace of Mind" in Community Care Settings

Frequent reader Karen Miller from Florida made a timely catch by sending me two articles that both mention the "peace of mind" that can accompany living in purpose-planned retirement communities, including CCRCs or LPCs.  Thanks, Karen!  

In last Sunday's edition of the New York Times, reporter Peter Finch offered "How to Talk About Moving to a Retirement Home: It's a Journey." He includes admissions by once highly reluctant residents, including one who finally gave in to his wife's desire for a new setting:  

For the once-skeptical Mr. Strumsky, it took only days for him to start feeling certain that he and his wife, who is 72, had made the right decision. About a week after moving in at Charlestown [a retirement community outside of Baltimore], he went out to walk the dog at night and ran into a pair of women he didn’t know who were chatting amiably in the parking lot. About 25 minutes later, he returned home and saw the same women, still talking.

 

“They were so unconcerned about their personal safety, they were oblivious to anything going on around them,” Mr. Strumsky said. “And it just hit me: I really wished my mother or my sister or my aunt could have had this experience, to feel that safe and secure. At that point, it was like a light bulb going on. It was an instant turnaround for me.”

By contrast, Patricia Hunt, a columnist for the News Leader (part of the USA Today Network), writes about "friends whining about the rules of their . . . subdivision," noting that the security that some people seek can come with a regulatory price tag, even if the regulator isn't the government.  She writes in part:

In retirement many people with the means to do so choose a “continuing care retirement community.” There is a big price range, but basically you pay an entrance fee, and most require that you be well enough to live independently to be admitted. They provide food service, activities, and stepped up sections for “assisted living” and for the most debilitated, “skilled nursing care.” This is the most expensive option for one’s last years.

 

But the rules for the residents of CCRCs are set entirely by people who do not live in them. And flexibility is the most restricted of all options. If you grandson who ran away to join the circus can be talked into living with you for a few months until he can sort things out with his parents, you cannot let him do that. If you decline in health and your granddaughter is willing to come live with you so you don’t to go to assisted living or skilled nursing care, you can’t do that either. You can hire people to come in night and day, but your family member cannot simply move in. She must have another permanent address. At least this is how most of them work.

 

If you[r] adult child gets sick or loses a job and needs to stay with you, it is not allowed. And you may not have the money to help him or her out if you have spent it all on the entrance fee and monthly fees.

Hunt concludes by questioning whether people "really" do hate regulation, noting "there is plenty of evidence of that some of them are not only willing to live with more regulations than many other people, they are willing to pay a lot of money to do so." 

For more from Hunt, read the full column "We Hate Regulation, But We Willingly  Trade Away Our Basic Freedoms for Comfort, Security."  

May 3, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, April 25, 2018

New Jersey's ORANJ - 2018 Annual Meeting HIghlights


On April 24, 2018,  members of the Organization of Residents Association of New Jersey, or  ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey.  Members Gathering at Cedar Crest Retirement for April 2018 ORANJ Annual MeetingORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements."  Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment.  Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit.  For more on this topic, see my update post from last week.  As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."   ORANJ Meeting President Ron Whalen

James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.  

ORANJ Meeting  April 2018 Speaker James McCracken LeadingAge NJI spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities.  On the topic of resident concerns, I addressed what I call the "big three":  lack of transparency on cost and funding issues,  the need for effective resident voices in governance, and excessively paternalistic attitudes of some management.  ORANJ Meeting April 2018

 This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen.  ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also  instrumental in passage of an enhanced "bill of resident rights" for CCRC operations. 

New Jersey has approximately 40 CCRC/LPC communities within the state.  Some 87 percent operate as not-for-profit, while another 13 percent are for profit.  The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.  

  

April 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, April 11, 2018

Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation

Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:

In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.

This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.

To register, click here.

April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 8, 2018

Who Gets Your Stuff When You Have No Kids?

A while back we published a post about Swedish Death Cleaning and I'll hazard a guess that after you read that post, many of you went through your stuff and disposed of things.  So here's another thought-when you don't have kids, to whom do you leave your stuff?  The New York Times tackled that issue in this article, If You Don’t Have Children, What Do You Leave Behind?

The author's essay explains her dilemma as she puzzles through who of her relatives get what, and in what amount, offering her view that "wills are easier for parents because they have a natural push — the need to name guardians for their children and provide financially for them after they are gone. On the surface it’s about who gets your stuff, but it got me thinking about ways people without children create a legacy. Who will remember us?"

The author did a lot of homework, casting a wide net of inquiries and carefully considering her catch.  She discovered "patterns and creative thinking [and] saw a lot of worry, too, mostly about who will take care of us when we’re old. When it comes to legacy and relationships with young people, people start close to home. Nieces, nephews and godchildren came up in nearly every response. As did the idea of meaningful work. And that’s true for [the author]."

This is an interesting piece and I think it would be useful for our students to read. It will help remind them that estate planning is not a "one-size-fits-all" exercise.

Thanks to Professor Naomi Cahn for sending this our way.

 

April 8, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Other, State Statutes/Regulations | Permalink | Comments (0)

Are States' "Slayer Laws" Preempted by ERISA Rules on Entitlement to Pension Survivor Benefits?

Here's an unusual case to start off a new week.  In Laborer's Pension Fund v. Miscevic, the 7th Circuit faced interesting statutory interpretation questions about whether "survivor" benefits available under a murdered's man's pension must be paid to the very woman who killed him, his "surviving" wife.   

The first question focused on ERISA's rules, asking whether the federal law (which does not contain "slayer" provisions) preempted any disqualifying effect of state slayer laws.  Ultimately, considering the issue as a matter of first impression for federal appellate courts, the 7th Circuit rejected the ERISA preemption argument.   

But that left the question of the effect of the Illinois law in light of additional, unique facts. The wife argued her state criminal court verdict of "not guilty by reason of insanity" barred the disqualifying effect of the Illinois slayer statute.  The Court analyzed similar language of the Illinois slayer statute and the Illinois insanity law and concluded:

Put simply, an individual may not appreciate the criminality of her conduct, but still have "intentionally" and "unjustifiably" cased a death. Indeed, in this case, the judge at [the wife's] criminal trial made an explicit finding that [she] intended to murder [her husband] "without justification," despite concluding [she] was not guilty by reason of insanity."

Noting a split among state courts in analyzing the effect of "not guilty by reason of insanity" on entitlement to inheritance under other states' slayer laws, with Mississippi and New Jersey permitting recovery by a party deemed insane at the time of the murderous act, the 7th Circuit concluded that Illinois would not follow that path.  The Court concluded that the Illinois slayer statute barred this wife from recovering her husband's pension benefits.

This case is interesting for reasons other than interpretation of the federal and state laws. The case was filed as an interpleader by the Pension Fund, as the Fund had received conflicting claims for survivor benefits from the wife and the couple's 11 year old daughter.  The minor-aged daughter will now take the survivor benefits, but, the "minor child benefit" for the plan lasts only until the minor is 21.  It is perhaps an unfortunate side effect of an already sad case that without the murderous facts, the wife would have been a survivor until her death, but the innocent (and, perhaps, needy) daughter's survivor benefits will terminate after 10 years.  Should there be the option to treat any benefits payable to someone deemed "not guilty of murder by reason of insanity" as being subject to a constructive trust in favor of the next of kin?   

My thanks to always eagle-eyed attorney Thomas Murphy in Phoenix, Arizona for sending the report on the 7th Circuit case, decided January 29, 2018.  

 

April 8, 2018 in Cognitive Impairment, Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

As Individuals with Developmental Disabilities Live Longer, They May Outlive Caregiver Parents

During Dickinson Law's recent program on Dementia Diagnosis and the Law, one of our panelists, Elder Law practitioner Sally Schoffstall raised an issue planning professionals are seeing more often, families who are concerned about the long-range needs of children with developmental disabilities. I know that over the years I have often had law students whose interest in disability and estate planning law began with a brother or sister with special needs, and they are thinking about their own future roles in helping the family plan. 

The good news is that better early health care often means an extended life for disabled children, but that very fact raises the probabilities on living longer than the people who have been primary caregivers, especially their parents. As we heard from medical professionals at our conference, individuals with Down Syndrome, for example, are now less likely to succumb to physical impairments such as developmental  heart problems, but still face a significant risk of early onset of dementias, with an estimated 30 percent of those in their 50s already experiencing symptoms similar to Alzheimer's Disease.  

On May 21-22, a St. Louis-based nonprofit organization, Association on Aging with Developmental Disabilities (AADD) will hold its 28th annual conference.  The conference draws an audience of professionals from a wide range, including social workers, nurses and other service providers.  As with most people, individuals with disabilities want to "age in place," and that takes extra planning to manage financial assets.  Pamela Merkle, executive director for AADD explains:

"Sessions will focus on giving them the tools they need to successfully support people with developmental disabilities who are aging,” says Merkle. 

 

She explains that many of the issues faced by older persons with developmental disabilities mirror those of aging individuals in general, such as isolation, depression and how to handle retirement. “Like most people, they want to ‘age in place,’ not spend their golden years in a nursing home. Given that living within the community is more cost-effective, it’s important to both the seniors and our communities that there be more public programs to support that choice,” she continues. . . . 

 

For individuals who are 50 or older, AADD offers retirement services. While some of the participants have held community-based jobs, others spent decades in sheltered workshops. As with many members of the general population, they often tend to define themselves through the jobs they held for so many years. “So we focus on identity: ‘I’m a volunteer” or “I’m active in my church,’” explains Merkle. “If you don’t have something in place to fill the void after retirement and to maintain the skills you’ve developed, you’ll retire to your couch. You won’t be an active part of the community, and will most likely spend your “golden years” alone.”

For more, see this commentary from the Special Needs Alliance, and look for related links.  My thanks to Sally for providing links to this conference information! 

April 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs | Permalink | Comments (0)

Monday, April 2, 2018

Supported Decision-Making as an Alternative to Adult Guardianship

Dickinson Law Presentation and Panel Discussing Guardianship Oversight and the Courts 3.29.18During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships.  One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making.  I promised the audience I would post some additional materials on the topic here.  

For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship.  Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities.  The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow. 

During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.

A published commentary by Cardozo Law's Rebekah Diller, an associate clinical professor, explains the movement behind supported-decision making as a better alternative: 

During  the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.

So, what exactly is "supported decision-making?" Professor Diller explains:

 The support can take the form of accessible formats or technological assistance in communication.  Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.

The author warns there is no single model for supported decision-making.  Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney. 

In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law.  The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here. 

In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.  

In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities."   The ABA captured a host of materials related to this discussion on this website.

In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.   

Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know."  While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future.  Here's an ABA webpage providing details. 

My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference! 

April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 29, 2018

Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"

Dickinson Law's CJE Program on Dementia Diagnosis and the LawOn Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream.  The program was "Dementia Diagnosis and the Law," organized into three parts:

Part 1:  Medical Science and Dementia

Panel Discussion and Audience Q & A

Part 2:  Legal Implications of a Diagnosis of Dementia

  • Keynote Presentation:  Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
  • Why “Guardianship Oversight” is a Hot National (and State) Topic
    • Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University

Panel Discussion and Audience Q & A

Part 3:  Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.

  • Panel Discussion and Audience Q & A

Panel Members included:

As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.

My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative.  It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future.  Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.  

March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)

New Mexico, Where New Guardianship Laws Will Take Effect July 1, 2018, Struggles With Reporting Systems

Earlier this week, The Albuquerque Journal reported on continued problems with accountability for court-appointed guardians within New Mexico. Colleen Heild writes:

What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown – at least according to state district court records. . . . Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.

 

There’s no indication as to whether she is dead or alive, or if the  guardianship/conservatorship has been revoked. . . . 

 

As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.

 

State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.

 

“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’ ”

For more, read Missing Reports Plague Guardianship System (3/25/18). 

March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, March 26, 2018

Maryland Courts Tackle the Challenge on Guardianship Reform

Maryland is among the several states putting serious energy into modernizing and reforming rules governing guardianships, with major new rules that took effect on January 1, 2018.  In Bifocal, the journal of the ABA Commission on Law and Aging, the Honorable Karen Murphy Jensen, who chaired a multidisciplinary workgroup tackling the state reforms, describes the process during an interview.  She notes the work ahead for many: 

Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality. 

 

Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.

For more, read: Maryland Judicial Workgroup Spearheads Guardianship Reforms, Vol. 39, Issue 3, Bifocal. 

March 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 23, 2018

National Council on Disability Calls for Nationwide Reforms for Guardianships

On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations,  calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships. 

As set forth in the press release, NCD's findings include:

  • Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
  • Capacity determinations often lack sufficient scientific or evidentiary basis.
  • Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
  • People with disabilities are often denied due process rights in guardianship proceedings. 
  • Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
  • Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
  • There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.

NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.  

Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.

My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.

March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, March 22, 2018

The Perils of Serving as a Financial Caregiver

At the invitation of the editor for the ABA Commission on Law and Aging's journal, Bifocal, I wrote a recent article on The Perils of Serving as a Financial Caregiver. I described a fundamental challenge:

What are the family dynamics? Will appointment of one individual create a trap whereby an overlooked or disgruntled offspring, sibling or spouse demands an accounting?  Even successful defense against a weak claim will involve costs to the financial caregivers and to the principal's estate.  Family dynamics can also change over time, especially as feelings of resentment, guilt or denial begin to color relationships. Consider whether greater transparency within the family at all phases of the relationship involving handling of financial matters will deter later problems.

Using an article in the The New York Times today, my words of caution appear mildly framed, compared to the reality of what appears to be one family's deeply embedded dynamic following the death of the parents, pitting two sons against a daughter and her husband over the family fortune in Arkansas.  

“I want this finished, over and done,” Sanders McKee [one son] said in his deposition. “I am tired of wasting my life. She needs to stop wasting her own. And I’m tired of this. I’m absolutely exhausted with it.”

 

But that was in August 2014, and the legal battle continues, costing all sides money and time. The Noels [daughter and son-in-law] estimated that they have spent $1 million on legal fees in the case, and they’re not resting. 

 

Aside from the cost, the case also demonstrates the strain being a trustee can put on family members.

For the full cautionary tale, read Are Millions Missing? Some Relatives Want to Know.  Others Don't, by Paul Sullivan.

Hat tip to my Dickinson Law colleague, Professor Laurel Terry, for the pointer to this interesting New York Times  piece.

March 22, 2018 in Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases | Permalink | Comments (0)

Thursday, March 8, 2018

The Toughest Issue for Protective Service Agencies? Self Neglect...

Boy, did this New York Times piece by always interesting Paula Span resonate for me.  I spent several years serving as designated counsel for individuals who were facing unwanted intervention by Adult Protective Services. The issue of self-neglect is just plain tough -- and it doesn't get any easier with age.  From the article:

[T]he state adult protective services agency sent a caseworker to the man’s home. She found an 86-year-old Vietnam veteran in a dirty, cluttered house full of empty liquor bottles. His legs swollen by chronic cellulitis, he could barely walk, so he used a scooter. He missed doctor’s appointments. He had the medications he needed for cellulitis and diabetes, but didn’t take them. Though he had a functioning toilet, he preferred to urinate into plastic gallon jugs. He didn’t clean up after his dogs. He wasn’t eating well. . . . 

 

In the Texan’s case, “he wasn’t happy that A.P.S. was there, and he denied that he was being exploited,” said Raymond Kirsch, an agency investigator who became involved. “He also denied that he had a drinking problem.”

 

Grudgingly, he allowed the agency to set up a thorough housecleaning, to start sending a home care aide and to arrange for Meals on Wheels.

 

But on a follow-up visit a month later, the caseworker found her client markedly deteriorated. His swollen legs now oozed. He’d become personally filthy and was ranting incoherently. She returned with an ambulance and a doctor who determined that the client lacked the capacity to make medical decisions.

 

Off he went to a San Antonio hospital, under an emergency court order. The caseworker locked up the house and kenneled the dogs. . . . 

Our special thanks to University of Illinois Law's Professor Dick Kaplan for pointing us to this article.  For the outcome of this particular case, read to the end of the full article, Elder Abuse: Sometimes It's Self-Inflicted.

March 8, 2018 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 5, 2018

News Feature Focuses on Court-Appointed Guardian in Pennsylvania, Raising Important Systemic Questions

From Nicole Brambila, an investigative journalist for the Reading [Pennsylvania] Eagle, comes an article examining the history of a specific individual appointed by courts to serve as a guardian in multiple cases, in different counties in Pennsylvania.  The article raises important questions about court oversight, including but not limited to whether there should be mandatory criminal background checks for those serving as court-appointed fiduciaries:  

If [an elderly couple in Montgomery County, Pennsylvania] were astonished to learn the court-appointed guardian [for the 79-year-old husband] had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come.  Unbeknownst to them, Byars [the guardian in question] had been convicted multiple times of financial theft.

 

Her most recent arrest came in 2005.  She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks [she] found while rummaging through trash cans at a Virginia post office. 

The article points to another case in Philadelphia Orphans Court, where an attorney representing family members of a different person alleged to be in need of a guardian, looked into the background of Byars, and discovered records detailing her history.  The attorney was successful in having her removed as the court-appointed guardian in that case.  The Reading Eagle reporter writes:

For six months she continued serving as guardian to 52 incapacitated Philadelphians. No other Philadelphia judge removed her until after the Reading Eagle made dozens of inquiries in January with the court, Adult Protective Services, the Pennsylvania Department of Aging and state lawmakers about her appointments. . . . 

 

Philadelphia Orphans Court works with more than a dozen professional guardians. Ten of these, including Byars, carry some of the highest caseloads: 22, 48, 54 and more. But none more than Byars, who was appointed in Philadelphia alone 75 times from 2014 through 2016, according to court dockets.

For more, read Unguarded: Montgomery County Couple's Trust Betrayed, published March 4, 2018 in the Reading Eagle [paywall protected, although there is a $1 fee for single day access].  

 

March 5, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, February 26, 2018

PA Appellate Court Rules Against Elder Care Planning Company Suing Elder Law Attorney for Defamation

In a "nonprecedential memorandum" -- but still interesting opinion -- filed on February 14, 2018, the Pennsylvania Superior Court affirmed summary judgment in favor of defendants on an issue of defamation. The plaintiff is a retirement or planning company and the defendants are a law firm and an elder law specialist attorney in that firm.  The plaintiff alleged defamation and intentional interference with business relationships via letters on the law firm's letterhead that were signed by the defendant Attorney while serving on a county senior citizens board. 

The letters allegedly pointed to certain marketing presentations from companies that present programs on living trusts and estate planning, referencing plaintiff as "one such company." According to the court opinion, the "correspondence characterized the presentations as a 'sinister form of financial exploitation of the elderly' that 'often result in seniors losing thousands of dollars in unnecessary fees for documents they do not need,' and that 'can also result in the sale of investments that are not appropriate for seniors.'”   

The plaintiff Company's lawsuit was filed in January 2008.

The defendants sought summary judgment on the defamation count in October 2016.  

Under Pennsylvania statutory law, 42 Pa. C.S.A. Section 8343(a)(6), a plaintiff has the burden of proving specific elements of defamation including "special harm resulting to the plaintiff from . . . publication" of the alleged defamatory communication.  The defendants argued the plaintiff was unable to satisfy that element.

In the memorandum opinion, the Superior Court concluded:

Appellant incorrectly maintains that it did not have to prove the existence of any harm because the letter in question accused it of engaging in misconduct or fraud in marketing living trusts to senior citizens. While it did not have to establish economic loss, it did have to adduce some proof that its business reputation was affected by the communication. Appellant admitted to the trial court that it could present no witness to attest that its reputation in the community was harmed due to the dissemination of the correspondence in question. Since Appellant had the burden of proving that aspect of its defamation cause of action, summary judgment was properly entered herein.

For more, read the nonprecedential opinion in United Senior Advisors Group, Inc., v. Leisawitz Heller Abromowitch, Phillips., PC., and William R. Blumer.  The final footnote in the opinion suggests the summary judgment ruling resolves only the defamation count in this long running suit.  

February 26, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)