Friday, July 31, 2015

Which is More Terrifying? "Dying Early" or "Living Long" (and Doing Financial Planning Necessary for the Latter)?

The New York Times recently carried a column that probably hit home with many -- if, that is, one could bring oneself to read it.  While some people keep postponing "the conversation" discussion about how they want to die, there is plenty of evidence many people are also avoidant of conversations about financial planning for a long life. 

Educating consumers to be better purchasers seems a sensible idea, but an example from recent history illustrates the problem with that. For a long time, the simple investment advice given to consumers has been “buy an index fund.” Index funds are such standardized products — mirroring the Standard & Poor’s 500-stock index does not require much management — that just about all of them were initially low cost while offering wonderful diversification.

 

Consumers have been buying index funds, and the market has responded by providing hundreds of them. Nearly all E.T.F.s are index funds.

 

But the market has also responded by charging high fees for this standardized product. In 2004, Ali Hortacsu and Chad Syverson, economists at the University of Chicago, found that index funds had as much variability in fees as their more labor-intensive actively managed counterparts. And these fees are nothing to be scoffed at — paying 1 percent more every single year in fees can compound over a lifetime to noticeably lower returns.

For more on the problem with financial advice -- with encouragement to "face up to something [you too] may have been dreading," read Why Investing Is So Complicated, and How to Make it Simpler, by Sendhil Mullainathan. 

My thanks to Prof. Laurel Terry and Jack Bennett, Esq. for sharing this column.

July 31, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Property Management, Retirement | Permalink | Comments (0)

Tuesday, July 28, 2015

Where There's a "Will," There's a Way....

I'm visiting family in the Southwest as I type this entry.  To say that I come from a family of pack rat readers is an understatement.  Every room in my parents' three story old house has stashes of books, even the bathrooms.  In one room, I think the bed is entirely supported by books stacked neatly underneath it.  (And this is a looooong family tradition; I can remember vacations in Wisconsin where the prized activity was digging through old books and ancient Saturday Evening Posts in a cousin's attic, to find the perfect text for reading on the screened- in porch on a rainy summer day).

This week's discovery was an article in the Winter issue of the Journal of the Southwest, a refereed journal  published quarterly at the University of Arizona.  "The Eclipse of the Century," tells the story of married scientists Cecile DeWitt-Morette and  Bryce Seligman Dewitt, who pursued greater understanding of Einstein's theory of relativity. A goal was to observe one of the longest total eclipses of the sun, taking the highest-quality possible photographs in order to measure and document "bending" of light caused by the pull of gravity.  The opening paragraph of the article by University of Texas PhD candidate David Conrad hooked me:

 Cécile DeWitt-Morette sat on a roof in a sandstorm in the Sahara Desert. It was 10:30 a.m. on June 30, 1973, and nearly 100 degrees Fahrenheit. If the storm did not let up soon, all was lost. A year and a half of preparation and approximately $100,000 in grants would be for naught, and a similar opportunity would not come for another 18 years. But Cécile had no power over the wind or sand or time. She could only wait. Beneath her feet, inside the structure she and her colleagues from the University of Texas (UT) McDonald Observatory built, her husband Bryce DeWitt—head of the expedition—and five other men waited for the storm to abate. The clock ticked off the seconds, and still the sand blew. All the money and effort spent to send these people here, to the oasis of Chinguetti in the Islamic Republic of Mauritania, could not alter the forces of nature.

You may be asking, "How on earth is this a topic for the Elder Law Prof Blog," right?  The answer comes from the fascinating start to UT's decision to develop a top-flight team of academic researchers.  It began with a "will."  The article continues...

Continue reading

July 28, 2015 in Books, Current Affairs, Estates and Trusts, International, Science | Permalink | Comments (0)

Friday, July 24, 2015

Huguette Clark Family Foundation Announces Grant for Study of Elder Exploitation

From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:

The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.

 

“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”

The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades."  Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.

July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)

Thursday, July 23, 2015

Nevada Supreme Court's Commission Undertakes Review of Adult Guardianships

As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada.  In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.

The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county.  Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations. 

The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail.  Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:  

July 23, 2015 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, July 16, 2015

What If Harper Lee Published a Third Novel...?

George Washington Law Professor Naomi Cahn observes that it is hard to find humor in the drama that appears to underlay the publication of Harper Lee's second novel.  Professor Cahn passes along The Onion's ability to do just that with a satirical prediction of Harper Lee's third novel:  "Shocking the literary world once again, acclaimed author Harper Lee announced through her publisher Tuesday the surprise release of her third novel, My Excellent Caretaker Deserves My Entire Fortune...."

A rueful smile here... 

July 16, 2015 in Books, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts | Permalink | Comments (0)

Highlights from Upcoming Pennsylvania Elder Law Institute on July 23 & 24

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg. 

Highlights include:

  • "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
  • How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
  • Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
  • LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
  • Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
  • Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
  • A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)

There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).  

I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!    

July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Friday, July 10, 2015

Louisiana Governor Signs Amended "Lifetime Necessities" Law Obligating "Ascendants & Descendants"

Louisiana Governor Bobby Jindal, one of (now many) candidates for the Republican nomination for President,  has been making a fair amount of press of late, for his positions on so-called medical marijuana, Common Core education standards, and how his state will handle same-sex marriage. Lower on the radar screen, however, was his signing of Act 260, an interesting package of legal changes affecting obligations between various family members.

One of these changes was to adopt a new provision affecting the obligations of "ascendants and descendants" to provide "basic necessities of life" for family members "in need."  In other words, filial support. 

Louisiana already had a provision, Section 229, providing that "children are bound to maintain their father and mother and other ascendants who are in need."  The new provision continues this statutory obligation, but makes enforcement "personal" only.  The substitute provision was signed into law on June 29 and becomes effective on January 1, 2016.  New Article 237 of Act 260 provides:

Descendants are bound to provide the basic necessities of life to their ascendants who are in need, upon proof of inability to obtain these necessities by other means or from other sources, and ascendants are likewise bound to provide for their needy descendants, this obligation being reciprocal.

 

This obligation is strictly personal and is limited to the basic necessities of food, clothing, shelter, and health care.

 

This obligation is owed by descendants and ascendants in the order of their degree of relationship to the obligee and is joint and divisible among obligors. Nevertheless, if the obligee is married, the obligation of support owed by his descendants and ascendants is secondary to the obligation owed by his spouse.

Official comments explaining the revisions emphasize that the necessities obligation kicks in only when the needy family member is unable to obtain necessities "by other means" or from "other sources," thus signaling any filial support obligation is secondary to the individual's eligibility for public assistance or other welfare benefits. Further "for the first time" Louisiana law "provides a ranking of those descendants and ascendants who owe this reciprocal, lifetime obligation."

The commentary explains that the revision makes the obligation "strictly personal," and there it precludes enforcement by "a third person."  Thus, it would appear that unlike in Pennsylvania (or Germany?) nursing homes and the state may not use these statutes in order to sue family members to collect necessities for indigent elders.

According to the comments, the obligation is also not "heritable."  This appears to reflect a Louisiana Court of Appeals decision from 2010, In re Succession of Elie,denying a mother's claims for funds from a deceased son's estate brought under former Section 229.     

July 10, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, July 6, 2015

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

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

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

 

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

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

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

Thank you to Professor Laurel Terry for sharing this resource! 

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

Thursday, July 2, 2015

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

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

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

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

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

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

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

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

Continue reading

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

Tuesday, June 30, 2015

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

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

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

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

Sunday, June 28, 2015

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

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

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

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

 

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

 

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

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

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

Friday, June 26, 2015

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

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

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

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

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

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

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

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

 

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

 

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

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

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

Thursday, June 25, 2015

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

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

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

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

Friday, June 19, 2015

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

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

The impressive list of contributors includes:

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

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

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

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

Wednesday, June 17, 2015

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

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

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

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

Tuesday, June 16, 2015

Northern Ireland Advocate Calls for Overhaul of Adult Social Care Legislation

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

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

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

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

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

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

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

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

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

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

Friday, June 12, 2015

Wills: Don't Wait Until Tomorrow...

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

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

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

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

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

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

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

Thursday, May 28, 2015

Ohio Successfully Uses Local Property Tax Levies to Supplement Senior Services

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

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

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

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

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

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

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

 

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

 

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

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

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