Friday, April 29, 2016
It seems nursing home operators are calling upon some of the same "trade practice" laws they are sometimes accused of violating, in an effort to thwart what the operators see as misleading advertising by personal injury attorneys.
One of the latest suits has reached the Georgia Supreme court, where the Mississippi-based law firm of McHugh Fuller Group is seeking to overturn a lower court's injunction preventing it from running a statewide ad campaign, including full-page color ads, seeking potential clients who "suspect that a loved one was NEGLECTED or ABUSED" by a nursing home run by PruittHealth, Inc. From an April 27, 2016 Georgia Courts' summary of parties' arguments before the high court:
PruittHealth sued the law firm under the Georgia Deceptive Trade Practices Act, which authorizes a court to issue an injunction (a court order requiring a certain action be halted) against anyone who uses someone’s trade name without permission if there is even a “likelihood” that the use will injure the business reputation of the owner or dilute its trade name or mark. The trial court entered a temporary restraining order against the law group, scheduled a hearing and notified the parties that it intended to consider PruittHealth’s request for a permanent injunction. The trial court issued another order on June 1, 2015, permanently stopping the law group from running ads that used PruittHealth’s trade names, service marks, or other trade styles. The law group filed a motion for reconsideration, which the trial court denied. The law firm is now appealing to the Georgia Supreme Court....
The law group argues, among other things, that the court erred in determining the ads violated Georgia Code section 10-1-451(b), which is called Georgia’s “antidilution statute.” That statute says dilution occurs “where the use of the trademark by the subsequent user will lessen the uniqueness of the prior user’s mark with the possible future result that a strong mark may become a weak mark.” The law firm argues that it is not eroding the strength of PruittHealth’s mark, but is only identifying specific nursing homes against which it is accepting cases, and that PruittHealth failed to demonstrate that actual injury occurred as a result of the ads.
This isn't the first time that the McHugh Fuller Law Group has been on the receiving end of a lawsuit by a nursing home company. In February 2015, Heartland of Portsmouth in Ohio and McHugh Fuller Law Group were in federal court arguing about diversity jurisdiction over Heartland's claim the law firm was using "false and misleading advertising in order to encourage tort litigation" against the nursing home's operations in Ohio. Similar litigation, seeking injunctive relief, was underway by Genesis Healthcare Corporation against the McHugh Fuller firm in West Virginia in 2007, although it is unclear from my research whether either of those cases reached a final resolutions.
My thanks to Professor Laurel Terry, Dickinson Law, for pointing me to this ABA Journal post that encouraged my search for more about these cases.
Wednesday, April 27, 2016
Southern California attorney and mediator Jill Switzer, who writes columns for Above the Law as "Old Lady Lawyer," uses lyrics from Kenny Rodger's The Gambler as part of her theme in a recent essay. She asks whether lawyers prepare themselves, not just financially, but emotionally, to retire at the right time. Suggesting the answer is "probably not," Switzer draws on data from a recent California State Bar survey:
On its website, the State Bar of California recently asked its lawyers “how long do you plan to keep practicing law?” The poll was completely unscientific, as it didn’t tally the results by age, years in practice, or any other criteria whatsoever. However, the result was not surprising, at least to this dinosaur: more than fifty percent of the responding lawyers said they would continue to practice as long as they are able. (Ten percent or so said they were looking to switch careers as soon as possible, approximately twenty percent said that they hoped to take early retirement, and approximately fifteen percent said they’d practice until they turned sixty-five. Note to millennials: the retirement age at which you can start receiving full Social Security benefits is creeping upward.)
And speaking of "farewell," did you notice that Above the Law recently terminated the "comments" option for readers of the frequently sharp-tongued blog? Details here, and I suspect a few readers might view this change as somewhat ironic.
Sunday, April 24, 2016
Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25 minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond. (You may have to give this time to load, as it is an embedded video file).
For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse."
April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, April 22, 2016
This semester, I took a poll with my students in Elder Law, asking their views about right to die issues. This year, perhaps more than in past years, the poll came out strongly in favor of honoring clear, adequately informed decisions of individuals to end their lives. Of course, we discussed the many grey areas, and the impact of high profile cases, such as Brittany Maynard, on current thought. We debated both the question of affirmative actions to die, particularly in states that permit physician assistance, and the potential to assume -- and or even over-assume -- that a completed "living will" is a choice to reject so-called extraordinary life-saving measures. Just because we are now more likely to support personal choices to die, does not mean we should assume that all accept a nearer end.
Relevant to this discussion is a Washington Post essay by Boston-based internal medicine and primary care resident Ravi Parikh on When a Doctor and Patient Disagree About Care at the End of Life. He describes his own experiences as he begins his career:
Not long ago, a frail-looking elderly patient appeared at my cardiac health clinic with a file full of hospitalizations stemming from a heart attack years before. He’d had three coronary stents put in, had had heart bypass surgery and was unable to walk for more than a block due to chest pain. I saw that a previous doctor had written “DNR” — do not resuscitate — in his chart, so I asked him to confirm his wishes.
No, he said, to my surprise. He actually wanted to be a “full code” — meaning that chest compressions, shocks and intubation were to be used if necessary to keep him alive.
I was taken aback....
This experience pushed him to rethink his approach to the topic, which in turn led him to The Conversation Project website. His exploration concludes with the thought that "Once we listen enough to learn, maybe those 'goals of care' discussions will start focusing on the goals of the patient, not the doctor."
Our thanks to George Washington Law's Naomi Cahn for sending this piece; she and frequent writing colleague Amy Ziettlow have a thematically related piece for a recent University of Illinois symposium on "Law, Religion and the Family Unit After Hobby Lobby: A Tribute to Professor Harry Krause."
Thursday, April 21, 2016
Someone asked me recently about "alternatives" for law students interested in helping older persons or disabled adults. I said, in essence, "figure out how to start and operate a cost-effective, soundly-managed, and reliable, nonprofit rep-payee organization in your community." (And understand that you won't make a fortune, but you can make a good living with a well-run nonprofit!)
In "Ways to Meet the Growing Need for Representative Payees," Justice in Aging recommends that the Social Security System partner with organizations, including attorney organizations, to establish a "sustainable program to help recruit representative payees who are reliable and suitable to perform all of the required duties" of a rep-payee for those receiving federal program benefits but who often are unable to manage the money soundly. In some instances they may have no easy access to reliable family or friends. The "unbefriended," who, in turn, may be vulnerable to those with bad intentions:
Aging demographics and the predicted increase in cognitive deficits and other chronic conditions are expected to create a dramatic need for representative payees. For many of these seniors, family members and friends may be unavailable to serve in this capacity. SSA should think broadly about the groups of people eligible to serve as payees and then create standards for appointment, require a more in-depth level of training, and increased accountability.
Justice in Aging closes by urging that SSA's "recruitment efforts should be geared towards eligible individuals with legal experience as well as other fields with relevant backgrounds, such as social workers and religious community leaders."
Friday, April 15, 2016
Lately, I've been hearing and seeing the phrase "living wills" in mainstream news sources such as the New York Times, but at first the context was confusing to me because the media were speaking and writing about Big Banks, not humans. So, how did it come about that following the 2008 financial crisis, regulators started requiring large financial institutions to have "living wills?"
The Wall Street Journal explains in What You Need to Know About Living Wills [in the context of Big Banks]:
A living will is a document from a financial firm that describes how it would go through bankruptcy without causing a broader economic panic or needing a bailout from taxpayers. The largest U.S. banks have filed several versions of them since the 2010 Dodd-Frank law, which required living wills from financial firms that were judged to pose a potential risk to the broader economy. The documents are also known as resolution plans. “Resolution” is regulatory parlance for dealing with a failing financial firm. Living wills are separate from other regulatory requirements, such as annual “stress tests” that measure whether could banks survive a severe recession.
I've not yet determined who first came up with "living wills" to describe what Dodd-Frank, at 12 U.S.C. Section 5361(d), refers to as "resolution plans." Without accurate, full disclosure, addressing all aspects of the financial institution's operations, such plans -- by any name -- seem unlikely to achieve the goal of greater market stability. As another WSJ writer points out, the utility of Big Banks' living wills comes if not just regulators, but the Bank executives, are paying attention:
The point of the living wills, like the stress tests, is to sit banks down and make them comb through their businesses in excruciating detail, with a focus on grim aspects like liquidity crunches and operational risks in bankruptcy. A useful result of the living wills is that, if they're done correctly, they give regulators a good overall picture of how a bank works, how money flows between its parts, what its pressure points are, and how it responds to crisis. But a much more important result is that, if they're done correctly, they give bankers themselves that same overall picture: They force a bank's executives and directors to understand the workings of the bank in a detailed and comprehensive way. And if they're done incorrectly, that's useful too: They let the regulators and bankers know what they don't know.
The full article on this point is titled, with nice irony, Living Wills Make Banks Think About Death. There, a least, is one similarity in living wills for humans and banks.
Tuesday, April 12, 2016
In April 2016, Senators Richard Blumenthal (D-CT), Bob Casey (D-PA), Sheldon Whitehouse (D-RI) and Al Franken (D-MN), introduced Senate Bill 2747 in the United States Senate. Carrying the title of "Elder Protection and Abuse Prevention Act," one provision of the bill would amend existing federal law to redefine "abuse," as that phrase is used in the Older Americans Act. The new definition would read:
The term "abuse" means the knowing infliction of physical or psychological harm or the knowing deprivation of goods or services that are necessary to meet essential needs or to avoid physical or psychological harm.
The existing language, defining abuse, provides:
The term “abuse” means the willful--
(A) infliction of injury, unreasonable confinement, intimidation, or cruel punishment with resulting physical harm, pain, or mental anguish; or
(B) deprivation by a person, including a caregiver, of goods or services that are necessary to avoid physical harm, mental anguish, or mental illness.
Monday, April 11, 2016
I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old. Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements. See e.g. here and here. However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.
In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case. Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.
In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system." Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.
By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million. The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015.
The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.
Friday, April 8, 2016
U.S. Department of Labor has a new guide book, "Paying Minimum Wage and Overtime to Home Care Workers," to assist families in understanding updated rules for payment of home care workers. These rules became fully effective on January 1, 2016.
The goal of the recently finalized "Home Care Final Rule" is to "make sure that home care workers have the same basic wage protections as most U.S. workers, including those who perform the same jobs in nursing homes and group homes." The rule applies "if you hire the worker directly, and no agency or other organization is involved," but may also apply if you hired the worker through an agency.
Employers must keep certain basic records for home care workers, and these records will be key to determining proper payment, especially for overtime:
1. Full name;
2. Social security number;
3. Home address;
4. Hours worked each day and total hours worked each workweek;
5. Total cash wages paid each week to the employee by employer, including any overtime pay; and
6. Any weekly amounts claimed by the employer as part of wages for housing or food provided to the employee/.
The guide explains special rules that apply if the paid care provider is a family member or if the paid worker is "living in."
In addition, the guideline explains the "narrow" exemption from minimum wage and overtime rules that applies for home care workers who provide only "companionship services." The key here is that the the worker can be spending no more than 20% of his or her working time on tasks such as assisting with personal care (bathing, dressing, cooking, cleaning, etc.) and the worker is not performing any medically related tasks.
Monday, April 4, 2016
Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis. As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses. As reported by the Las Vegas Review-Journal in an April 1, 2016 article:
An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.
District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.
Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.
But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.
For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices." The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.
Tuesday, March 29, 2016
Roz Chast's memoir of life with her parents as they aged, Can't We Talk About Something More Pleasant?, uses humor to explore the complicated issues that can arise when aging parents and their adult children try to address physical frailty and financial complexities in the "third age" of life. Another look, equally realistic and also ruefully humorous, comes from William Power, writing for the Wall Street Journal in "The Difficult, Delicate Untangling of Our Parents' Financial Lives." Thanks to the WSJ for making this an unlocked article for digital access!
Power begins with that ever-humbling attempt to use "help lines" to solve problems by phone:
“No, no, no, don’t transfer me to her again,” pleads my wife. It is a typically frustrating moment in our family crisis, one that many grown children will have to face, ready or not: We are people in our 50s who are unraveling the finances of parents who can no longer do it themselves.
My wife, Julie, is on the phone with the company where her 82-year-old dad had once worked, trying to change the direct deposit of his pension checks to a bank closer to the assisted-living home where he and his wife now live, which is near us in Pennsylvania. Again and again, she is transferred to the person in charge, “Rose.” And every time, the same recording: “This number has been disconnected.”
Power's account is punctuated by practical advice for others, including the importance of teamwork, involving both family members and others, in tackling the issues, as well as the use of key document-based tools, including Powers of Attorney, or as he stresses, "Repeat after Me: POA, POA, POA."
My thanks to Amy Bartylla, a long-time friend, for this article referral.
March 29, 2016 in Advance Directives/End-of-Life, Consumer Information, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0)
Friday, March 25, 2016
The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.
The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws." She concludes:
The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.
In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.
In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."
The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment. "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a). Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."
Thursday, March 24, 2016
Earlier this week, I reported on the Florida Office of Insurance Regulation's actions affecting University Village, a Continuing Care Retirement Community (CCRC) in west Florida. Additional events are now coming to the surface in media reports, including turmoil with employees over salary and benefits:
Workers from the Nursing Center at University Village made a lot of noise walking a picket line, protesting salary caps and reductions in benefits. This labor unrest comes while the new owners of University Village, Westport Holdings of Tampa, struggle to stop the state from yanking their license and shutting them down.
Health care workers represented by the Service Employees International Union are protesting working without a contract since December. Westport Holdings claims through the years the University Village nursing center was overly generous to its employees, and it’s time to reel in costs.
“What do they consider to be generous? I’ve been working with them for over 20 years and I haven’t seen $20 an hour yet,” Scott said.
Management wants to cap salaries and reduce health care benefits. It contends workers at University Village are paid more than employees at other local facilities.
For more, see News Channel 8's report on Employees Protest Benefit Cuts at Embattled Hillsborough Retirement Community.
Wednesday, March 23, 2016
My colleague Becky Morgan shared a good item this week on statistics about the number of elderly inmates, with growth of needy inmates increasing the burden on state prisons.
Another perspective on the issue comes this week via the San Jose Mercury News, reporting on California's Elderly Parole Program:
The Elderly Parole Program was instituted by a federal three-judge panel after a 2013 class-action lawsuit successfully argued that conditions in California's overcrowded prisons, including poor health care, amounted to cruel and unusual punishment. As a result, the court ordered California to reduce its inmate population. The Elderly Parole Program and a realignment program to move nonviolent convicted felons back to county jails are among the solutions. The Elderly Parole Program will be in effect at least until California meets its prison population targets.
In Sacramento, prosecutors and victims rights groups have been working to prevent this temporary program from becoming state law. They scored a small victory last week when, after a call from this newspaper, state Sen. Mark Leno, D-San Francisco, gutted Senate Bill 1310, which he introduced last month. The original bill would not only make the Elderly Parole Program state law, but it would also lower the eligibility age to 50 and the time in prison to 15 years.
The withdrawal was unexpected and came with little explanation. Leno said in a statement Thursday that the bill would be used as a place holder for "other criminal justice reforms" and that "the bill will not deal with the issue of elder parole."
The article reports that since the Elderly Parole Program began in February 2014, more than 1,000 inmates have had parole hearings, with 371 granted parole, 89 deemed "not ready," and 781 denied release. In the article, the reality of the hearings is seen through the eyes of one victim, who faced the trauma of attending a parole hearing to argue that the man who sexually assaulted her and others some 30 years ago, should serve his full sentence or die in prison -- 141 years.
No easy answers here. For more read, "California's Elderly Parole Program Forcing Victims to Face Attackers Decades Later."
Tuesday, March 22, 2016
Legal Service programs around the country have constant challenges in securing adequate funding for operations and I'm often struck by the ingenuity needed to keep programs afloat. I was struck by a recent "Access to Justice" panel report in Montana that highlighted the needs of rural persons, including older persons at or near the poverty line, living in isolated circumstances. Even with pro bono hours contributed by law firms, under-funding remains a serious problem. KTVQ.com from Billings, Montana reported:
One witness, identified only as Vicky, said she fought a two-year battle with Medicare before obtaining a $3,000 scooter that helps her carry on daily life while coping with cerebral palsy. “I didn’t know where to go or what to do,” she said. Vicky was among the lucky few Montanans who get legal help through the Montana Legal Services Association, said Alison Paul, director of the association....
Elderly Montanans face similar problems, said Todd Wood, director of the Area II Agency on Aging, which provides services over an area larger than West Virginia. Federal funding for the program has declined in recent years while state funding has slowly increased so that the agency now gets about two-thirds of its funds from the federal government and a third from state government.
But those sources account for only $5 million of the agency’s $9 million budget. The rest comes from contributions by clients for such services as meals and transportation. Without those contributions, the program probably would fold within five months, Wood said. He noted that many elderly residents live in deep rural areas, some without electricity or telephones. They often need help with such legal matters as wills, power of attorney and guardianship problems, he said, but they often are unaware of their rights or unable to find help.
“Their mailman might be the No. 1 contact in the course of the day,” he said.
Providing legal help for seniors is especially critical in Montana, which faces a coming tidal wave of elder care needs, said Gary Connelley, a fulltime pro bono attorney for the Crowley Fleck law firm. By 2020, Montana is expected to be third in the nation in the number of people per capita age 65 or older, he said. But even though Crowley Fleck donated nearly 5,000 hours of free legal help in 2015, Connelley said, it turns away eight or nine of every 10 requests it gets for free legal assistance.
For more read, "Legal Help for Poor, Disabled Often Hard to Come By."
For another perspective on the intense consequences for entire families from under-funding of legal services, this time on the criminal justice side of the bar, see the New York Times' recent article, "In Louisiana, the Poor Lack Legal Defense." Are you getting a tax refund this year? An opportunity to make a tax-deductible contribution to a Legal Aid or Service program near you!
Thursday, March 17, 2016
To follow up on an earlier Elder Law Prof Blog post about recently enacted "visitation rights bills," we note that the Los Angeles Times has reported on advocacy efforts by high-profile children such as Catherine Falk, daughter of actor Peter Falk, and Kerri Kasem, daughter of Casey Kasem, in support of similar legislation in other states:
Though Falk and Kasem work independently, they've become a powerful one-two punch for reforming visitation laws, stumping for change in more than 30 states. Falk says her proposed legislation is now being considered in 10 states; Kasem's bill has already been adopted in three — California, Iowa and Texas.
The two agree their efforts are getting notice because of their celebrity fathers, and have little problem with such an advantage. "This isn't the Casey Kasem Bill, or the Mickey Rooney Bill, or the B.B. King Bill," Kasem said, referring to other personalities who went through similar elder battles. "It's the Visitation Rights Bill, and it affects thousands in the U.S."
The comments posted in reaction to the article are also interesting, with some pointing out that in both the Kasem and Falk families, the disputes involved women married for decades to the celebrities in question. Others point to the question of how ordinary families cope with these kinds of access issues, especially without the money or time to pursue rulings by courts.
March 17, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, March 16, 2016
A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees. In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.
The court noted the guardianship was part of larger family disputes following a divorce. As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian. The parties stipulated that the fees could not exceed $50,000. That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP).
The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just.
As required by New York Law, the court made detailed findings. The court concluded:
- "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding." The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
- "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services. However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."
The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."
Friday, March 11, 2016
From the most recent issue (issue No. 3) of Bifocal, the electronic journal published by the ABA Commission on Law and Aging, links to several interesting feature articles:
When lapses in memory or physical issues start to affect activities of a loved one's daily living, such as cooking, eating, bathing, or paying bills, it's time to evaluate their needs and living situation. As the affected loved one's care needs increase, attorneys can assist with drafting caregiving/personal care agreements.
To ensure that all beneficiaries can receive their payments and make proper use of funds, Congress has granted the Social Security Administration (SSA) the authority to appoint third parties, known as representative payees, to receive and manage payments when the beneficiary is unable to do so. With Alzheimer's disease and other cognitive impairments on the rise, more seniors find themselves unable to manage their own benefits. SSA is currently exploring additional ways to identify seniors who may be in need of a representative payee. When working with seniors or caring for loved ones, please be aware of the following information about the rep payee program to help identify seniors in need.
Emeritus pro bono practice rules can be effective tools for recruiting volunteer attorneys. Specifically, by reducing some of the licensing burdens for attorneys who agree to limit practice to pro bono only, these rules are designed to encourage pro bono service. Whether these rules are actually effective in encouraging pro bono service, however, is an empirical question. To answer that question, a short online survey was done in 2014 returning modest data. In 2015 the ABA Standing Committee on Pro Bono and Public Service--in collaboration with the ABA Commission on Law and Aging--launched a project to collect more complete data on participation, the number of hours, and what recruitment methods appear to be most successful.
Tuesday, March 8, 2016
Recently I answered my office phone at the end of a long day. The caller was upset, but eventually I learned that part of the concern was about something the caller thought I had said. As I tried to make heads or tails about what the caller was saying, I realized the concerns were triggered by a book I knew nothing about. Nonetheless, the caller was telling me I "was in the book." How could that be true?
With a bit of research after the phone call, I was able to find the book in question. It turned out it was someone's 2016 self-published book, advertised on Amazon. When I reviewed a copy of the actual book, I was surprised to find that a rather lengthy comment I had written for the Elder Law Prof Blog appeared in this book, right down to a missing period in my original post. Indeed, much of the book appeared to me to be this sort of "cut and paste" effort. Only occasionally did the author identify an item in the book as "reprinted with permission."
I had never heard of the author of the book and I had not been asked permission to use my Blog item. In addition, although the author of the book said nice words about my work, the context in which my item appeared was not acceptable to me. I have asked the book's author to delete my piece from all future printings of the book.
Folks, to state what I thought was obvious, this blog is copyrighted. While copyright symbols are not necessary to protect creators' rights, the notice -- "(c) Copyright 2004-16 by Law Professor Blogs, LLC. All rights reserved." -- appears at the bottom of every webpage for each of the blogs appearing on the Law Profs Network.
Speaking for myself, it is, of course, permissible to quote my blog items, with proper attribution. As long as you use common sense about the length of any quote, you don't need permission to do that. You can also use hyperlinks from your blogs to our blog. But we draw the line at you copying our posts into your own publications. For reprint or republication rights you need to ask and get permission.
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Monday, March 7, 2016
In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.
Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.
To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:
- Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause." Changes to the law became effective on July 1, 2015.
- Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications. For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
- California, Assembly Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail." The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care. For more on the California legislation, signed by California Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.
These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect. It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.
March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)