Wednesday, December 13, 2017
Are games and food supplements that promise to stave off the onset of dementia the modern day version of "snake oil?" I promised to write more about the Aging Brain Conference at Arizona State University's Sandra Day O'Connor College of Law on December 8, 2017. Speaker Dr. Cynthia Stonnington, Mayo Clinic, offered an important look at ways in which law, ethics, medicine, and commerce can collide with her survey of a host of approaches receiving "popular" press treatment.
She examined self-described "brain-training" programs, miracle diets, supplements and targeted exercise programs, noting that most studies that purport to demonstrate positive results from these items have serious flaws. Thus, at best, programs that claim to provide "protection" against dementia are usually promising more than has been proven. Dr. Stonnington, along with the morning keynote speaker, former U.S. Surgeon General Richard Carmona, reminded us that
- maintaining social engagement,
- engaging in lifelong learning,
- getting regular exercise of any type,
- having good blood pressure control,
- getting adequate sleep, and
- focusing on good nutrition (including eating plans such as the Mediterranean, DASH or MIND diets)
are far more important than any single, magic game or exercise.
One of the most lively discussions of the day came near the end, in response to presentations by Dr. Patrica Mayer of Banner Health in Phoenix, Amy McLean of Hospice of the Valley. and Life Sciences Professor Jason Robert (ASU) speaking for himself and Susan Fitzpatrick (James S. McDonnell Foundation), about end-of-life considerations for persons with dementia or other serious illnesses. What would be the most likely response of a physician or emergency personnel confronted with a "do not resuscitate" tattoo on the chest of an emergency patient? Dr. Mayer stressed that she is seeking reliable methods of communicating end-of-life wishes, and for her that means a preference for a written, Medical Power of Attorney. She wants that "live" interaction whenever possible, in order to fully explore the options for care for individuals unable to communicate for themselves. But she also noted a frequent frustration when she contacts designated POAs about the need to make tough decisions, only to learn they were completely unaware before that moment of having been named as the designated agent.
I was part of a panel of court-connected speakers, including Arizona Superior Court Judge Jay Polk (Maricopa County), neuropsychologist (and frequent expert witness) Elizabeth Leonard, and experienced Phoenix attorney Charles Arnold. I was interested to hear about -- and will pursue more information on -- the psychologists' use of evaluative tools for clients that use scenarios that would appear to test not just for loss of memory, but impaired judgment. I was speaking on the unfortunate need for judicial inquiries into "improvident transactions" by persons with problematic cognition and I used litigation approaches from other locations -- Ireland (common law) and Maine (statutory) -- as examples. The Arizona legal experts reminded me to take a closer look at Arizona's financial exploitation laws.
For more from this conference, see Learning to Say the Word "Die" -- about a pilot program developed by Dr. Mayer while she was an advanced bioethics fellow at the Cleveland Clinic. I also recommend Dr. Mayer's article on CPR & Hospice: Incompatible Goals, Irreconcilable Differences,
December 13, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Games, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, Science, Statistics | Permalink | Comments (0)
Wednesday, December 6, 2017
On December 8, 2017, I'm excited to be participating in a conference on The Aging Brain: Legal, Policy & Ethical Perspectives, in Phoenix, Arizona. This program is a follow-up to an interdisciplinary workshop hosted at Arizona State University's Sandra Day O'Connor School of Law in the fall of 2016. This year's presentations will take place at the the United States Courthouse in Phoenix.
The planned schedule is jam-packed with speakers I'm looking forward to hearing, including:
Welcome: Betsy Grey, Sandra Day O’Connor College of Law, ASU
Introduction: Dean Douglas Sylvester, Sandra Day O’Connor College of Law, ASU
Keynote Speaker:Richard H. Carmona, M.D., M.P.H., FACS, 17th Surgeon General of the United States, Chief of Health Innovations, Canyon Ranch, Distinguished Professor, University of Arizona
Scientific Developments in Aging and Dementia: Pre-Symptomatic Screening for Neurodegenerative Diseases
Panel Chair: Hon. Roslyn O. Silver, U.S. District Court for the District of Arizona
- Dr. Richard Caselli, Mayo Clinic
- Dr. Jessica Langbaum, Banner Alzheimer's Institute
- Dr. Cynthia M. Stonnington, Mayo C;inic
- Jalayne J. Arias, UCSF Neurology, Memory and Aging Center
- Henry T. Greely, Stanford Law School
Aging at Home
Panel Chair: Larry J. Cohen, The Cohen Law Firm
- David Coon, College of Nursing & Health Solutions, ASU
- Kent Dicks, Life365, Inc.
Panel Chair: Charles L. Arnold, Frazer Ryan Goldberg & Arnold, LLP
- Hon. Jay M. Polk, Probate Dep’t. Associate Presiding Judge, Superior Court of Arizona for Maricopa County
- Katherine Pearson, Dickinson School of Law, Pennsylvania State University
- Dr. Elizabeth Leonard, Neurocognitive Associates
- Betsy Grey, Sandra Day O’Connor College of Law, ASU
End of Life
Panel Chair: Dr. Mitzi Krockover, Health Futures Council at ASU
- Jason Robert, Lincoln Center for Applied Ethics, ASU
- Amy McLean, Hospice of the Valley
- Dr. Patricia A. Mayer, Banner Baywood & Banner Health Hospitals
Dr. Susan Fitzpatrick, President, James S. McDonnell Foundation
Introduction by Jason Robert, Lincoln Center for Applied Ethics, ASU
December 6, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Science, Statistics | Permalink | Comments (0)
Tuesday, December 5, 2017
Our friend and colleague, Professor Naomi Cahn at GW Law, sent us a link to a story published in Slate. The Digital Afterlife Is a Mess recounts the tangle created by the number of accounts a person may have, knotted up by company policies and wrapped around various laws.
Today’s world is different. Many of us have chosen to go paperless, so all of our financial statements are delivered electronically; we even file digital tax returns. Our love letters may no longer be written in ink on paper, our reading and listening and viewing interests no longer documented by hardcover books and magazines, record albums, and VCR tapes, and our photos no longer stored in boxes under out beds.
So once the digital asset owner dies, how does the executor gain access to these digital assets and further, determine their value, if any? The article explains the hurdles, including the potential for committing a crime unwittingly by using the decedent's account and password to access digital files. The article turns to the Uniform Act designed to address this growing problem: the Uniform Fiduciary Access to Digital Assets Act, Revised, which has been adopted by almost 2/3 of the states. The Act "allows a fiduciary to manage much of a decedent’s digital property, giving access to many things other than the content of electronic communications (unless this access has been limited by the user or by a court order) and even permitting access to content in certain limited situations." The article explains the 4-tiered system the Act uses for prioritizing and offers practical suggestions such as starting with inventorying your own digital assets, subscribing to an online account management program, and include coverage of digital assets in estate planning documents.
Monday, December 4, 2017
Last Saturday, I had the unique privilege to sit in on a day of Advanced Probate Mediation Training, a component of a larger ADR program at the Orphans/ Court for Prince George's County, Maryland. The attendees included long-serving mediators from other court divisions, judges and attorneys and individuals interested in a formal mediation process for probate cases. The facilitators for the training were Mala Malhotra-Ortiz and Cecilia Paizs, very experienced educators and ADR specialists. Chief Judge Wendy Cartwright welcomed us all and made it clear that mediation, collaborative probate and structured settlements are three vital programs for the probate division. Certainly this is part of a trend favoring ADR, now applying to post-death disputes.
My strongest impression of the day was the warm and positive demeanor of the folks I met, especially as they were giving up most of their Saturday. I had the feeling that they were eager to share this experience.
Part of the training involved role plays -- and everyone in the room took the exercises seriously. In Maryland, a challenge to a will is called a "caveat" proceeding, and a threshold question for court administrators is whether a specific dispute seems to be a good candidate for referral to mediation.
In one exercise, I played a minor role (a "grandchild") of the testator, in a fact pattern that involved two named beneficiaries, a biological child and a second beneficiary who wasn't a direct blood relation. The fact pattern was realistic, as both sides wanted "accountings" for pre-death expenses by those serving as the caregiver or POA for the elderly testator before her death. The dispute included a long-history of difficult family dynamics, and was realistic as there was a temptation for other family members to take sides with the primary disputants. We even had an "obstructionist" attorney as an assigned role, someone who was still advocating for the purely "legal" outcome during the mediation.
The majority of the participants were also lawyers -- and I could quickly see how uneasy the fact pattern made some attorneys. One option for the mediated outcome was distinctly "nonlegal" -- i.e., permitting the parties to split the proceeds of the estate in a way that was not the same as the testator's directions in her will. The facilitators did an excellent job in counseling the lawyers on how to change their thinking, so as to allow consensus to emerge for a final, written settlement agreement. The fact pattern also put us in the position of needing to think about whether there had been any pre-death elder exploitation, and if so, to discuss how mediators should handle the possibility of a "crime."
I know our law students are going to be very lucky to have Mala Malhotra-Ortiz join us at Dickinson Law in the near future as an adjunct professor. And, by the way, for anyone interested in why probate courts are sometimes called "orphans' courts," I recommend the Court's link above on the history of Orphans' Courts in Maryland.
December 4, 2017 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
In the Wall Street Journal, there is a recent, wonderful profile of Boston University Law Professor Tamar Frankel, who has been fighting the good fight to gain adoption of "The Fiduciary Rule" for financial advisors, investment brokers and others in positions of trust for her entire academic career.
And, at age 92, she's still fighting the good fight, as the Trump administration recently delayed full implementation.
When Ms. Frankel began researching fiduciary law in earnest in the 1970s, she dwelled on that idea: A fiduciary is someone trusted by others because he or she has superior knowledge and expertise. People hire brokers because the brokers know what they’re doing and the clients don’t. That gives fiduciaries power and responsibility over those who trust them.
The unconditional trust that clients place in a fiduciary creates a paradox, argues Ms. Frankel. “When you get power, you lose the power you might otherwise have,” she says.
A fiduciary adviser can’t abuse the relationship of trust by collecting unreasonable compensation or harboring avoidable conflicts of interest. The relationship is meant to satisfy only the needs of the client.
Professor Frankel appears to be remarkably sanguine about the latest delays:
With the Trump administration putting parts of the fiduciary rule on hold, Ms. Frankel counsels patience.
“What the rule has done is sown the seed, and the longer it takes the better off we are, because what we must change is the culture and the habits in the financial industry,” she says. “Habits don’t change in one day. It takes time.”
After she turns 93 next July 4, Ms. Frankel says, she will stop teaching—although she will continue to research and write. What accounts for her longevity? “Caring less and less about what other people think,” she says, “and more and more about questions you don’t have answers to.”
I have a copy of Professor Frankel's thoughtful treatise on Fiduciary Law (Oxford Univ. Press, 2011) on the shelf behind my desk, complete with sticky notes and much yellow and red highlighting. I've been meaning to write Professor Frankel to thank her for her work over the years -- and now this article reminds me to get to that task!
My thanks to my always eagle-eyed friend and correspondent, Karen Miller, in Florida for this latest find and reminder.
December 4, 2017 in Books, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, Retirement | Permalink | Comments (0)
Monday, November 20, 2017
University of Missouri Law Professor David English, who is part of a team working on new Guardianship Law proposals for the Uniform Law Commission, was reportedly in Albuquerque New Mexico recently. His appearance is in response to one of the latest regional scandals in the U.S. about the use of so-called "professional" guardians. See here and here for more on the recent history in New Mexico, including the summer 2017 federal indictment of key individuals .
According to news reports, part of Professor English's concern is about the dangers that can attend unnecessary secrecy about proceedings:
“What struck me when I first looked at New Mexico, I was very surprised as a general matter that guardianship proceedings were not open to the public. That’s not consistent with how most other states address the issue,” he told the guardianship commission on Friday.
In New Mexico, guardianship proceedings are sequestered and closed to the public. The only publicly available record is a court docket sheet identifying the parties involved and a general list of the actions and filings in the case. But, in Missouri, where English lives, the public can attend hearings in which judges decide whether a guardian should be appointed for an incapacitated person. Typically, those placed under guardianship or conservatorships are elderly, those with dementia or Alzheimer’s or others who need help with their decision-making or finances.
He said the intent of the new reform laws would be to open guardianship proceedings to the public, unless the person for whom the guardianship is being considered asks for a closed hearing or a judge decides otherwise. “It’s very important that the public have some access to what’s going on in guardianship cases,” English told the guardianship commission. “At least be able to attend the hearing.”
For more on the hearings and possible changes in New Mexico laws and procedures, see New Reforms in Guardian Law Presented by the Albuquerque Journal's investigative reporter, Colleen Heid.
November 20, 2017 in Consumer Information, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, November 9, 2017
I grew up watching the Smothers Brothers and vividly recall their sibling rivalry...."mom always liked you best." For elder law attorneys, the idea of the parent having a favorite child can be an important bit of information in the representation of the client. I've written about family matters beyond this blog. I was interested in the recent article in Huffington Post covering family favoritism. Parents Really Do Have Favorite Child, No Matter What They Say. Finally, ANSWERS. opens with an amusing observation that if your parents have told you all along they don't have favorites, they weren't being truthful to you. "[S]cience tells a different story. In research that will vindicate self-pitying siblings everywhere, sociologist Katherine Conger’s recently resurfaced longitudinal study found what many have suspected all along: Parents totally have a favorite child." The article discusses the study's hypothesis regarding birth order and who would feel favored. "The research also found that no matter a child’s birth order, every single one was suspicious of their parents liking another better. “Everyone feels their brother or sister is getting a better deal,” Conger said... So what do we make of all of this? For one, siblings have it tough. Always competing for their parents’ love, never knowing who’s ahead. But the good news for brothers and sisters is that the relationship serves tons of benefits: Having a sibling may make you more intelligent, more likely to have a stable marriage as an adult and can serve as a built-in support system. " The study referenced in the article is available for purchase.
Wednesday, November 1, 2017
This week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel." As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.
But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions. I'm sorry I did not have time to stay longer after the program, before heading to the airport. They were very clear and interesting speakers, with healthy senses of humor.
The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.
Whew! Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing? The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.
On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents. The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos. Copyright rules and the growing efforts to ensure payments are the reasons.
The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why. For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.
It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and Health Care Communities" in 2016. Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.
November 1, 2017 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 30, 2017
My research turned me to an interesting resource available in the public domain, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind. The book was published in 1897.
Particularly in light of current issues about court oversight of guardians and conservators, it is interesting to see that even in the nineteenth century, states were struggling to decide how frequently fiduciaries should be required to make written reports of financial accounting. Reporting only at the "end" of the appointment or at intervals of 5 years was sometimes permitted by statutes. The treatise suggests that while annual accounts facilitate better money management by the guardian, frequent reports also served to "shift the burden to the ward, or other person assailing the account" to make a timely challenge to the report, or it will be presumed "correct." This comment seems to demonstrates the court 's reluctance to expected to be initiate oversight "unless" there was a complaint.
Thursday, October 26, 2017
The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.
As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.
The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including:
- Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
- Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
- Establish stringent reporting and financial accountability measures for conservators, including the following:
1. require conservators, upon appointment, to sign releases permitting the courts
to obtain financial documents of protected persons;
2. require annual reports to include bank and financial statements and any other
documentation requested by the court auditor, with appropriate protections
to prevent disclosure of confidential information;
3. require conservators to maintain a separate trust account for each protected
person to avoid commingling of funds; and
4. require conservators to maintain financial records for seven years.
The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."
Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.
The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study. The deadline for the comments is November 8, 2017.
My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R. Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!
October 26, 2017 in Cognitive Impairment, Crimes, 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)
Sunday, October 22, 2017
The Southeastern Association of Law Schools (SEALS) has opened their call for proposals for their 2018 annual conference. If you teach T&E, Elder Law or related courses and are interested, here is some info about proposals for those tracks written by one of the organizers, Deborah Gordon:
We are hoping to encourage more trusts and estates programming at the Southeastern Association of Law Schools conference, which will be held from August 6-12 in Ft. Lauderdale. We will be proposing two discussion groups, described below, one which focuses on pedagogy and one on scholarship; please let us know if you would like to participate.
In addition, please feel free to propose a panel or discussion group yourself; here is the submission information, http://www.sealslawschools.org/submissions/.
PROPOSED DISCUSSION GROUPS Both pedagogy and scholarship within trusts and estates are moving beyond traditional core topics. We are proposing two plenary discussion groups that explore how pedagogy and scholarship are expanding the ways of teaching and studying trusts and estates and related doctrines. One group will address innovations in teaching, including both skills and doctrine, and teaching about topics that overlap with other areas of the law, such as Elder Law, Family Law, Property, and Professional Responsibility; the second group will explore new scholarship.
Thursday, October 19, 2017
Every day I fight with my email in-box, trying to delete the stuff that just isn't necessary to open, much less read. For example, I know more or less which emails -- no matter how tempting the regarding line -- are what I call "junk science" emails that claw their way past my spam filter. A lot of them involve "anti-aging" theories that promote foods, exercises, vitamins or minerals that "May" prevent cognitive or physical decline. "May" with a capital "M."
But United States District Judge Roslyn Silver, from Arizona, recently shared an article she's using with a class she is teaching at Arizona State's law school. In the June 2017 issue of Smithsonian Magazine, the subtitle for the article explains: "Backed by digital fortunes of Silicon Valley, biotech companies are brazenly setting out to 'cure' aging." The author profiles the work of controversial author Aubrey de Grey and "Chief Science Officer" from SENS, a biotech research enterprise in California. The author summarizes:
The basic vision behind SENS is that aging isn’t an inevitable process by which your body just happens to wear out over time. Rather, it’s the result of specific biological mechanisms that damage molecules or cells. Some elements of this idea date back to 1972, when the biogerontologist Denham Harman noted that free radicals (atoms or molecules with a single unpaired electron) cause chemical reactions, and that these reactions can damage the mitochondria, the powerhouses within cells. Since then, studies have linked free radicals to all sorts of age-related ailments, from heart disease to Alzheimer’s.
De Grey takes this concept further than most scientists are willing to go. His 1999 book argued that there could be a way to obviate mitochondrial damage, slowing the process of aging itself. Now SENS is working to prove this. Its scientists are also studying other potential aging culprits, such as the cross-links that form between proteins and cause problems like arteriosclerosis. They’re looking at damage to chromosomal DNA, and at “junk” materials that accumulate inside and outside cells (such as the plaques found in the brains of Alzheimer’s patients).
Despite the controversies associated with the work of de Grey and other anti-aging proponents, the article points to a "mini-boom of private investment in Silicon Valley, where a handful of labs have sprung up in SENS' shadow, funded most notably by tech magnates."
One of the early critics of de Gray concedes that anti-aging theorists have attracted needed money and energy into age-related research beyond "just" the 1,000-year-old human goal:
More than a decade later, [University of Massachusetts Medical School Professor] Tissenbaum now sees SENS in a more positive light. “Kudos to Aubrey,” she says diplomatically. “The more people talking about aging research, the better. I give him a lot of credit for bringing attention and money to the field. When we wrote that paper, it was just him and his ideas, no research, nothing. But now they are doing a lot of basic, fundamental research, like any other lab.”
I can definitely see how this article would be useful in a law school class on aging, elder law, or estate planning. It raises fundamental questions in governance, economics and human rights, including implications from disparities in life expectancy that already exist and are increasing, associated with comparative wealth.
For the full article, see Can Human Mortality Really be Hacked? by Elmo Keep.
Wednesday, October 11, 2017
During the last several years, I've received calls from around the country about possible guardianship "oversight" concerns. And since The New Yorker article came out last week focusing on guardianship issues in Las Vegas Nevada, I've been getting more calls. The question arises: Is there a pervasive problem with court-appointed guardians for older adults in the United States?
In my opinion, the answer is "no, not pervasive." At least, that's my answer if the definition of pervasive is "universal," or omnipresent, or rife, or widespread. In the 20+ years I've been working in elder law, I've unfortunately reviewed a lot of cases of exploitation, but it is comparatively rare that I've been asked to examine a court-monitored guardianship where there was a problem created by inadequate attention by the courts, much less active misconduct by the court or agency. Granted, that is just one law professor's experience.
Still, in my opinion, the oversight problems that do exist within the U.S. are significant, periodic, sometimes recurring or persistent, and often have common elements. The issues can exist in any county court or fiduciary administrative system. Historically, these courts -- sometimes called probate courts, fiduciary courts, surrogate courts, or orphans courts -- depended on the guardians for management of all issues, once the appointments were made. The judges trusted their appointees to take their fiduciary responsibilities seriously. But, as is sometimes said in international relations, the problem can be how best to "trust, but verify" proper behavior. With more elder boomers, there can be increased need for guardians, and thus more potential for guardians to be monitored.
- For example, in Maricopa County, Arizona, an investigative news series, that began in 2008 with the reporting of Laurie Roberts for the Arizona Republic, described a number of mishandled older adult guardianships. In some instances, the family members were so busy arguing about money, that the incapacitated elder was ignored, while his or her estate was diminished to pay fees. Sometimes the question was whether a "full" guardianship was even necessary. The problems, once investigated not just by journalists but by the courts, resulted in changes in Arizona guardianship law.
- In Palm Beach County, Florida, complaints about appointment of a particular individual as guardian in a large number of cases, focused on conflict of interest and claims of favoritism by the court, complaints that came from a number of families. Eventually, in one case challenging the system, a jury reportedly awarded more than $16 million against two West Palm Beach attorneys for "breach of fiduciary duties." The complaints also led to state investigations of Florida's entire oversight systems, and brought three years of legislative changes to Florida guardianship laws.
- Most recently, two co-founders of a nonprofit guardianship company, Ayudando Guardianship, in Bernalillo County, New Mexico were indicted in federal court in July 2017 with criminal charges including conspiracy, mail fraud, aggravated identity theft, and money laundering. The company was the appointed fiduciary in hundreds of cases.
Especially when the Clark County, Nevada cases are included in this list of recent challenges to guardianship oversight systems, concerns about proper and objective oversight are real; without a equally real commitment to more careful selection, training, monitoring and accountability for guardians, the problems can be predicted to increase as the baby boomer generation of seniors get to their 70s, 80s, or 90s. In 2016, the GAO for the United States responded to a U.S. Senate Special Committee on Aging's request for data on "the extent of abuse by guardians," and concluded that "courts lack comprehensive data on older adults in guardianships and elder abuse by guardians, but some courts have limited information." Unreliable data certainly leaves open the potential for the occasional problems to become pervasive problems.
October 11, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (2)
Wednesday, October 4, 2017
New Yorker: Article Focuses on Clark County Nevada to Demonstrate Systemic Failures under State Guardianships
The New Yorker Magazine offers "Reporter at Large" Rachel Aviv's feature in its October 9, 2017 issue, where she digs deeply into concerns raised by multiple cases in Clark County, Nevada where a court-favored, appointed guardian, April Parks, was often involved:
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Parks and other individuals, including her husband, were eventually indicted on criminal charges including perjury and theft, "narrowly focused on their double billing and their sloppy accounting," but as The New Yorker piece suggests, the court system itself shares blame for years of failing to impose effective and appropriate oversight over the guardians.
In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”
There are fundamental issues at the heart of this kind of history. Necessary and well-managed guardianships, under the best of circumstances, change the lives of individuals in ways that no person would want for him or herself. But when a guardianship system itself breaks down -- especially where judges or other administrators are unwilling or unable to be self-critical -- the confidence of the public in "the rule of law" is destroyed.
My thanks to Karen Miller (Florida), Jack Cumming (California), Richard Black (Nevada -- who is also quoted in The New Yorker piece), and Dick Kaplan (University of Illinois Law) for bringing The New Yorker piece to our attention quickly.
October 4, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 2, 2017
The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds. It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."
Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners. A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law. The mother-in-law later challenged the transaction as contrary to her understanding and intention.
Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts. They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.
As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.
Not so fast. Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process.
October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, September 18, 2017
In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:
"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"
During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry. In light of that fact, in its ruling on August 31, 2017, the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.
The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."
Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact." The Supreme Court disagreed:
Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.
The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court.
Thursday, September 14, 2017
As investigations begin into the report of 8 deaths of residents at a single nursing home in Broward County Florida three days after the region was impacted by Hurricane Irma, it occurred to me to look into post-Katrina legal proceedings involving nursing homes.
It turns out that very recently, in June 2017, the Louisiana Court of Appeals (4th Circuit) affirmed an award of $1,000,000 in damages for pain and suffering arising from one elderly woman's death at a nursing home four days after Hurricane Katrina hit New Orleans in August 2005. The nursing home argued comparative fault on the part of the Corp of Engineers for its "negligent design, construction and maintenance of" flood control systems in the region. The Court of Appeals rejected the nursing home's arguments regarding "non-party fault" (emphasis added below):
Following our de novo review of the proffered and record evidence regarding non-party fault, we cannot say that but-for the conduct of the Corps of Engineers, Ms. Robinette would not have died from heat stroke on the second floor of Lafon five days after the City of New Orleans had issued a mandatory evacuation order.
The record shows that flooding at Lafon was not the cause-in-fact of Ms. Robinette's death. Only one foot of water entered the building, and that water receded quickly. Ms. Robinette was not harmed by the flood water. Ms. Robinette's cause of death was heat stroke and dehydration due to her exposure to sweltering heat for four days. And Ms. Robinette's exposure to those extreme heat conditions was caused by Lafon's refusal to follow its own Evacuation Plan, and by the inadequacy of Lafon's backup emergency power generator. But for Lafon's substandard conduct, Ms. Robinette would not have succumbed to heat stroke caused by the lack of electrical power.
Because the Corps of Engineers' conduct was not the cause-in-fact of Ms. Robinette's death, we find no fault by the Corps.
How well-prepared are you for financing your retirement? Do you know your family's finances? The New York Times examined the situations that may be faced by women who are older who are not involved in the handling of their family's finances. Helping Women Over 50 Face Their Financial Fears covers a lecture series, Women and Wills, designed specifically for women over 50 that cover a variety of topics, including estate planning. health care, insurance, long term care, business succession planning and more. The founders are well aware that some women may not be up to speed on their family's finances, or other circumstances such as a spouse's illness, may present challenges for them. The founders plan to take their lecture series on the road, nationwide, and publish a book on the importance of planning.
Thanks to Professor Naomi Cahn for sending a link to the article.
Thursday, July 27, 2017
The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.
When I teach Wills, Trusts & Estates, I always include a few of the latest news articles or case reports that focus on LegalZoom or other, less high-profile on-line document drafting venues that are used directly by consumers. Alex's article examines the implications of formalism for this important reality. Thanks, Alex!
Friday, July 21, 2017
In the latest chapter of an ongoing dispute between a specialized care facility, Melmark, Inc., and the older parents of a disabled adult son, Pennsylvania's intermediate Superior Court of Appeals has ruled in favor of the parents.
The July 19, 2017 appellate decision in Melmark v. Schutt is based on choice of law principles, analyzing whether New Jersey's more limited filial support law or Pennsylvania's broader filial law controlled. If applied, New Jersey law "would shield the [parents] from financial responsibility for [their son's] care because they are over age 55 and Alex is no longer a minor." By contrast, "Pennsylvania's filial support law...would provide no age-based exception to parental responsibility to pay for care rendered to an indigent adult child."
The parents and the son were all, as stipulated to the court, residents of New Jersey. New Jersey public funding paid from the son's specialized care needs at Melmark's Pennsylvania facility for some 11 years. However, when, as part of a "bring our children home" program, New Jersey cut the funding for cross-border placements, the parents, age 70 and 71 year old, opposed return of their 31-year old son, arguing lack of an appropriate placement. Eventually Melmark returned their son to New Jersey against the parents' wishes, with an outstanding bill for unpaid care totaling more than $205,000, incurred over his final 14 months at Melmark.
Both the Pennsylvania trial and appellate courts ruled against the facility, concluding that "the New Jersey statutory scheme reflects a legislative purpose to protect its elderly parents from financial liability associated with the provision of care for their public assistance-eligible indigent children under the present circumstances." The courts rejected application of Pennsylvania's law as controlling.
This is a tough case, with hard-line positions on the law staked out by both sides. One cannot expect facilities to provide quality care for free. On the other side, one can empathize with families who face limited local care choices and huge costs.
Ultimately, I anticipate these kinds of cross-border "family care and cost" disputes becoming more common in the future for care-dependent family members, as the impact of federal funding cuts trickle down to states with uneven resources of their own. Some of these problems won't see the courtroom, as facilities will likely resist any out-of-state placement where payment is not guaranteed by family members, old or young.
July 21, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Housing, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)