Friday, September 21, 2018
This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.
Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here. A key amendment is now under consideration, in the form of AO9253. These amendments:
- Require counsel to be appointed for all allegedly incapacitated persons;
- Require all guardians to undergo a criminal background check;
- Require professional guardians to be certified;
- Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).
Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates.
A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf. His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:
The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.
As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).
The devil is in the details for any legislative reforms. It is often an "all hands on deck" effort to secure passage, especially in an election year.
Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?
September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, September 20, 2018
Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws, here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?
Troubled histories have emerged across the nation. Public concern has grown around the need for more careful consideration of the roles played by guardians. For example, events in recent years have highlighted the following problems:
- In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018.
- In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals. This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
- In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.
The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians. The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.
While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards. Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System. The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries.
September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 19, 2018
Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)
For the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature. Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018.
Today, let's begin with background. First, here is the status of pending legislation and the timetable that could lead to passage:
Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws. The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission. The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16). The current bill was approved and voted out of Senate committee in June 2018, but then tabled. Although the schedule is tight, there is still time for action by both house before the end of the session in November. If not fully passed and signed this year, a new bill must be introduced in the next legislative session.
The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.
Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:
In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force.
Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60. The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%. Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.
When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”
The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes. Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:
- Guardianship monitoring is weak, if it occurs at all.
- Training is not mandated for professional or non-professional guardians.
- Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
- The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.
The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.
Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts. The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians. These rules are scheduled to become fully effective by July 2019.
Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop.
Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules. Key substantive reforms require legislative action. Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor). After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.
September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Monday, September 17, 2018
Jack Cumming, a California CCRC resident, frequently comments on Elder Law Prof Blog posts, bringing to bear his deep expertise in financial planning matters and his equally engaged commitment to historical accuracy in a wide variety of issues. Jack is a Fellow of the Society of Actuaries, and a Certified Aging Services Professional by Examination. During what I might call Jack’s “official career” as a professional actuary, he served as an independent consulting actuary for life and health insurance operations, and before that as a corporate officer and chief actuary for insurance companies.
I first came to know Jack during what I’ll call his “second” career. Jack helped many, including me, understand concerns about actuarial soundness issues in Continuing Care Retirement Communities. He came to his specialized expertise in CCRCs in a unique way, by moving to a California CCRC with his wife and discovering issues that can benefit from actuarial analysis. Over the last 12 years, Jack has advised CCRC residents and providers, as well as their organizations across the nation.
Jack recently commented on an item I posted on September 12, that described a particular history of poor actuarial decisions contributing to failure of a large Pennsylvania long-term care insurance company. In that post, I also reported on a new hybrid type of long-term care product, announced by New York Life Insurance Company. Jack’s response was, as usual, so insightful that, with Jack’s permission, I am posting his commentary here, elaborated by him, as a blog post in its own right.
A number of thoughts come to mind when reading the recent Elder Law Prof Blog post on long term care insurance (LTCi). The Elder Law post lists a perfect storm of what turned out to be foolhardy expectations. Morbidity was underestimated, so were contract lapse rates and mortality. Anticipated investment returns turned out to be overstated, medical and care costs escalated, and efforts to raise premiums without triggering shock lapses proved insufficient. The result for the industry has been devastating, as anyone who has been close to LTCi, is well aware. Fortunately, LTCi was a small part of the business of many insurers offering the product, so losses were absorbed. Penn Treaty, an LTCi specialist company, was not so lucky.
Now, with the benefit of hindsight, it thus appears that there were significant and material optimistic misjudgments made in bringing LTCi to the market. First, the data used for the initial pricing were not sufficiently vetted. Pricing actuaries used what data they could find but, for the most part, they failed to take into account the fact that the very existence of such insurance, then being introduced for the first time, would make it more likely that people would use the benefits.
Moreover, the opportunity for LTC providers to receive payments promoted the growth of the provider industry to deliver services that the insurance would cover. Thus, historical data from the time before there was insurance was misleading. Since the products lacked incentives for policyholders, or those offering services to them, to restrain their use, it was predictable that people would seek to make the most of their coverage. And they did and continue to do so.
Long Term Care Insurance developed originally to give the sales agents of the large life insurance companies a product that they could sell as part of a product portfolio centered on the sale of life insurance. Such a portfolio, in addition to life and long term care insurance, often included disability income and health insurance. Most of the pricing actuaries who were involved in the early development of LTCi products were life insurance specialists influenced by life insurance concepts. There’s little discretion or volunteerism about dying, so mortality data used in setting life insurance premiums tend to be relatively stable and predictable. The consequence is that underwriting and claims in large life insurance companies are principally administrative, e.g. for claims, confirm the death and send a check. More subjective risks, such as disability income (DI) insurance and LTCi, require active management over the duration of a claim by highly skilled executives experienced and specialized in those particular undertakings.
September 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)
As anyone who has a loved on in a care setting can probably attest, the individuals who work there have tough jobs.
I was interested to read a McKnight's Senior Living commentary that focuses on a problem that may not be easy for the public to identify, the intentional use of "part-time" help to avoid an obligation to pay benefits for full time workers.
The author describes one woman who works 30 hours per week for each of two different employers -- that is 60 hours per week of hard work without benefits such as employer-sponsored health insurance. John O'Connor writes in an important column (with a title that could perhaps, unfortunately, be misunderstood because of the reference to a Hispanic name), Senior Living Has Way Too Many Marias:
We often hear about the labor challenge in senior living. To be sure, it's very real. There is a lot of competition, and conditions are especially difficult these days. It's not easy to find and keep people willing to work for the wages that are available.
But if we are going to be honest, at least part of the problem has little to do with unforgiving external conditions and more to do with conditions some operators have decided to put in place.
To get more to the point, many communities simply refuse to hire full-time workers. From an economics standpoint, that is understandable. But it doesn't do much for the Marias of the world. And there are a lot more of them out there than many operators would like to admit.
Friday, September 14, 2018
Seton Hall Law School's Center for Health & Pharmaceutical Law & Policy invites scholars to submit works-in-progress for discussion at its 3rd Annual Health Law Retreat scheduled for February 8, 2019. Here are the details:
The purpose of the retreat is to give area health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting. The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the Northeast area (broadly defined to include Washington D.C. and all points north).
The retreat will consist of an in-depth discussion of approximately 5-6 draft papers. For each paper, a commentator will provide a 10-15 minute overview, as well as his or her reactions. The author will then have 5 minutes to respond, after which the floor will be opened for a general discussion among all retreat participants.
If you are interested in having your paper presented, please submit a preliminary draft or, if that is not possible, a detailed introduction or outline of at least 5 pages, no later than November 26, 2018, to Catherine Finizio, at catherine.Finizio@shu.edu, who will anonymize them before distributing them to the selection committee. You will be notified whether your paper has been selected for presentation by December 17. Final drafts will be due on January 18, 2019. Drafts will be made available to all participants on a password-protected website.
To give you additional background on this conference, here is a link to the speakers, program and paper topics discussed at the February 2018 conference.
Thursday, September 13, 2018
State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response
Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.
News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires. Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan.
As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017. The complaint also seeks lifetime bans for individual administrators. While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.
The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present. The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have keys. It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents." Family members of the residents and emergency responders conducted the remaining evacuations at both locations.
The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article) to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly." As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans. It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living. The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice."
The state's suit comes a few days after news of a reported settlement of a civil suit for undisclosed terms, filed on behalf of 17 residents of Villa Capri.
September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 12, 2018
Last week, students in my Elder Law class at Dickinson Law had the benefit of a fascinating, detailed presentation by Pennsylvania's Deputy Commissioner of Insurance Joseph DiMemo about the history of insolvency for Penn Treaty American Network and American Independent Insurance Company as sellers of long-term care insurance policies. In 2009, the State took the reins as the receiver for the two companies' administration of more than 126,000 policies sold nationwide.
From the history, I would summarize reasons for failure of long term care insurance in its "traditional" form as including the following:
- Selling products with a promise or at least a strong expectation of level premiums, especially in the early years of the industry. While contract language permitted companies to seek rate increases, the companies often delayed asking for increases or were frustrated by states that refused to grant requested increases;
- Assumptions made about "lapse" rates for policyholders that proved to be inaccurate;
- Assumptions made about "interest" rates for invested premiums that proved to be inaccurate, even before the 2008-10 financial crisis;
- Assumptions made about lower morbidity and higher mortality that proved not to be accurate for policyholders overall;
- The continued use of invalid assumptions about future premium rate increases.
In light of this tour through history, I was interested to read about New York LIfe Insurance Company's description of its "new and innovative long-term care insurance product" in its press release dated September 5, 2018:
A new long-term care solution announced today by New York Life, NYL My Care, promises to make the purchase of long-term care insurance simpler and more affordable. The innovative product features design concepts familiar to purchasers of other types of insurance, including a deductible and co-insurance, and offers the benefit of a dividend, which can help offset future premiums. NYL My Care clients will also benefit from the peace of mind that comes from working with a mutual life insurance company with the highest available financial strength ratings.
“New York Life is committed to helping people plan for the future, which includes protecting themselves and their loved ones from the financial burden of an extended health care event,” said Aaron Ball, vice president, New York Life Long-Term Care. “NYL My Care’s simpler, first-of-its-kind product design will help more people understand, access and afford the protection they need against the potential cost of long-term care.”
NYL My Care covers a wide range of long-term care needs, including home care, community-based care and facility care, and offers four pre-designed plan levels ... bronze, silver, gold and platinum.
For more on so-called "hybrid" or "asset" based products that couple long-term care benefits to annuities or life insurance polices, read New Life Insurance Brings New Innovations to Long-Term Care Insurance Market from Forbes.
September 12, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Tuesday, September 11, 2018
I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance. The questions I've received are a reminder that "transparency" is a big issue. As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable." I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities. The problem is that many prospective clients do not know who they can trust, and many end up trusting no one. They end up not making any advance plan.
For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan. Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership." If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites. At least as of the time of my writing this blog post, there's only "good news" on the company's website.
The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes. I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name. But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.
Some providers will say that the problem is that "bad news" is over-reported. I don't think that is actually true. Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options. Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers. Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.
States, however, have unique opportunities to learn from their roles as receivers for troubled operations. Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success? And if not the regulators, why not have the industry itself publish standards of financial health.
September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
I've been reading articles for several weeks about a "troubled" nursing home in Connecticut where staff members were reportedly being paid late, and not receiving payments on related benefit claims (including health care and pensions).
The reports sound unusually mysterious, with indications of an executive's "loan" to a related charity from operating reserves. Suddenly more than $4 million was apparently restored to a key pension account:
As News 12 has reported, federal agents raided the center back in May. When the raid happened, that account was down to $800. For years, workers have complained about missing retirement money. In a lawsuit, the Labor Department claims the facility's owner illegally funneled their money into his own private charity.
Now, according to new court documents, the $4 million was unexpectedly deposited into the pension account last week. It's unclear where the money came from, and even the bankruptcy trustee running the facility was unsure.
"I don't truly know the source, but I do know that there's $4.1 million in this bank," bankruptcy trustee Jon Newton said at a court hearing yesterday.
But in a recent court hearing, owner Chaim Stern's lawyer said the money "was meant to represent the $3.6 million transferred from the (retirement) plan to Em Kol Chai." That's the charity authorities say Stern controls.
Workers may not get as much of that money as they think. Bridgeport Health Care has a long list of creditors, and they could potentially get a share.
News 12 reported back in July that part of the facility, called Bridgeport Manor, is shutting down. Lawyers say they hope to wrap that process up within a month.
September 11, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare | Permalink | Comments (0)
Monday, September 10, 2018
Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.
The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.
Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.
A key court hearing in a legal fight over the trust is scheduled for Monday.
Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.
As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.
Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.
For more, read Foundation Board: Protect Hawaiian Heiress' Millions.
While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger. Another article describes Ms. Worth as a "longtime caregiver." See A Cautionary Story of Elder Financial Abuse. Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice. See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.
September 10, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, September 7, 2018
As recent readers of our Elder Law Prof Blog will know, at Dickinson Law this semester I'm offering a unit on long-term care financing that is taking a hard look at long-term care insurance. Thus, it was great to receive a recent email from a reader, Samantha Stein, sharing her timely report for the Association for Long Term Care Planning on "Group Long Term Care Insurance vs. Individual Policy: Which Is Better?"
This should interest people beyond my student group!
For example, Samantha explains who sells each type of product, and how to look for reviews and ratings of companies offering products.
Thursday, September 6, 2018
Is suicide by older adults ever a rational choice? It’s a topic many older people discuss among themselves, quietly or loudly — and one that physicians increasingly encounter, too. Yet most have scant training or experience in how to respond, said Dr. Meera Balasubramaniam, a geriatric psychiatrist at the New York University School of Medicine.
She has written on the topic with a colleague, in an attempt "to generate more medical discussion,... in a 2017 anthology, “Rational Suicide in the Elderly,” and she revisited it recently in an article in the Journal of the American Geriatrics Society." The Hastings Center has also weighed in on the issue with the current Hastings Center Report with "a debate over “voluntary death” to forestall dementia."
The article acknowledges that suicide is an important public health issue that also includes older adults. The article explains the issues on both sides of this debate. For example,
Failing to take action to prevent suicide, some ethicists and clinicians argue, reflects an ageist assumption — one older people themselves aren’t immune to — that the lives of old or disabled people lack value.
A tolerant approach also overlooks the fact that people often change their minds, declaring certain conditions unendurable in the abstract but choosing to live if when the worst actually happens.
Slippery-slope arguments factor into the debate, too. “We worry that we could shift from a right to die to a duty to die if we make suicide seem desirable or justifiable,” Dr. Balasubramaniam said.
The article explores some of the research regarding suicide and features some quotes from individuals in addition to experts.
A recent post on The Motley Fool provided several key statistics regarding Long-Term Care Insurance, including the fact that the number of companies still writing traditional LTCI policies in the U.S. has fallen dramatically:
According to a report by the NAIC, the number of insurers offering stand-alone long-term care policies (as opposed to ones bundled with some other product(s) such as annuities) dropped from 125 to 15 between 2000 and 2014. That will only surprise those who haven't been keeping up with the industry, which has been struggling.
What's the problem? Well, as noted in the previous statistic, long-term care is simply very costly, and healthcare costs in general are quite steep -- they have been increasing at rapid rates, too. Some insurers have had to hike the premiums they charge their policy holders, while others have just stopped offering long-term care policies. Genworth Financial, for example, recently announced a 58% rate hike, while Mass Mutual requested a 77% rate hike.
This information shouldn't necessarily stop you from seeking coverage, but do know that the industry has been in some turmoil, and approach it with your eyes open.
For additional statistics (and resources) read Five Long-Term Care Stats that Will Blow You Away,
Friday, August 31, 2018
Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers. They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers. Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.
From the abstract:
In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.
For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.
Thursday, August 30, 2018
In my 1L Contracts course, I often discuss binding arbitration agreements, including those used as part of a package of admission documents in long-term care settings. I find that students tend to approach the subject from strong personal viewpoints. Some express their assumptions that arbitration is faster and less expensive than court-based litigation. Others, upon hearing the possible costs of arbitration and the rights that may be waived as a result of signing these agreements without careful thought or legal advice, ask whether they are "void" as unconscionable. We discuss the history of litigation in the nursing home realm, which has made the latter "contract law" challenge to be mostly unavailing.
On Tuesday, I sat in on an interesting "arbitration" discussion in an upper division Business Entities course that began with a unit on the law of agency. The springboard was the Pennsylvania Superior Court case of Wisler v. Manor Care of Lancaster, decided in September 2015. In the case history, the son had helped his father be admitted to a care facility for rehabilitation following a health crisis. The son signed the paperwork for his father, including an Arbitration Agreement. The son advised the facility he had a POA for his father, but the facility "did not obtain a copy of the power of attorney, nor could [the son] produce a copy at the time of his deposition." These facts became important after the family brought a personal injury suit against the facility; the defendant sought to compel arbitration.
The appellate court addressed this fact pattern as one of validity of an agency relationship between the son and father. The court concluded that without a written document or other evidence to establish the scope of authority granted to the agent, the alleged arbitration document signed only by the son was invalid to compel arbitration. The court found there was inadequate evidence of express, implied, or apparent authority for the son to waive his father's rights to a court-based trial, including any jury. Further, based on the facts, the court found no grounds to conclude the son had "authority by estoppel."
The court concludes that it is up to nursing homes to seek appropriate confirmation of the agent's authority. Reliance on oral representations was at their peril. "If a third party relies on an agent's authority, it must ascertain the scope of that authority at the time of reliance. . . . In other words, our decision should encourage parties seeking an agreement to arbitrate to ascertain the source of an agent's authority before allowing the agent to sign an arbitration agreement on the principal's behalf."
Perhaps the most interesting part of the class was the fact that the author of the appellate opinion, Pennsylvania Superior Court Judge Victor Stabile, was the guest lecturer for the discussion. He brought to bear not just his judicial experience but his commercial litigation experience to enliven the discussion. My thanks to Dickinson Law Professor Samantha Prince for inviting me to sit in on the interesting class.
Wednesday, August 29, 2018
Giving Caregivers (and Law Students!) an Opportunity to See Life through the Eyes of A Person with Dementia
Relias Learning developed an educational tool to promote empathy for individuals with dementia, in the form of a a video shot from the perspective of "Henry," a care facility resident.
Originally intended to help in training professionals, in June 2018 Relias released a version to the general public free of any charges. A second Virtual Reality version, is available for a modest price of $10. There are lots of good points for class discussion in the free on-line version of a Day in the Life of Henry, available here.
Tuesday, August 28, 2018
While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements. High profile examples of how this can arise often involve celebrities. The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment." From People magazine's online site comes this sad report:
The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.
Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”
Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)
Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”
Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue. My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog.
August 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Monday, August 27, 2018
New Jersey Governor Signs New Law Helping CCRC Residents Get More Timely Refunds of "Refundable" Fees
Back in April, I posted here about legislation pending in New Jersey, inspired in part by litigation. Residents of Continuing Care Retirement Communities in New Jersey were advocating for mandatory limits on how long a CCRC could hold "refundable" entrance fees after the death or departure of a resident from a facility. New Jersey CCRC residents are well-organized and they have earned the ear of legislators. Final passage on an amended version of Assembly Bills 2747/880 occurred on July 1.
On August 17, 2018, New Jersey Governor Phil Murphy signed Public Law 2018, c.98 into law. The old New Jersey Law required CCRCs to repay refundable fees, but the refunds were not mandated until 60 days of "the unit" being resold. Data collected by residents and disclosed during litigation revealed that some facilities were holding refundable fees for more than a year after the vacating of the particular unit, while marketing and selling "other" units first. In essence, the companies preferred to sell new units or other units unencumbered by a refund obligation, to maximize their income and asset picture.
The new law creates a preference list for the 60-day refunds, a type of "first out, first repaid" system. Key language of the new law provides:
"In the case of a continuing care agreement that provides for a refundable entrance fee, the facility shall assign the vacated unit a sequential 'refund' number among all available units with refundable entrance fees. Any balance [due on refundable fees] shall be payable based on the sequential 'refund' number assigned to the unit. . . . "
A compromise among facility owners and residents in the drafting of the legislation permits a facility to apply to the New Jersey regulatory body for CCRCs for permission to use an alternative methodology for making refunds, but "approval shall not be granted unless the facility can demonstrate that the use of the alternative methodology is resident-focused and provides for a more equitable and timely payment of refundable fees."
This final language appears to be more resident-friendly than an earlier proposed exception, which would have expressly recognized the possibility of conditioning refunds on the resale of "similar" units. Resident councils will probably need to be careful to review any alternative proposals submitted by their own CCRCs.
The act takes effect in 90 days from date of enactment. For more on the history of the legislation, see Signed: Bateman Law to Stop Retirement Communities From Taking Advantage of Seniors and Surviving Estate Holders.
Current residents did not get a clear win, as the new rules for refunds are mandatory only for CCRC agreements entered into on or after the effective date of the new law. Nonetheless, congratulations to CCRCs and residents in New Jersey on making changes that better respect the expectations of customers and their families about the use of funds that function, in essence, as an interest fee loan to the CCRC during the residents' tenure in the facilities.
Friday, August 24, 2018
Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?
A number of years ago, a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman. This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere. Didn't the father have a right to be a fool in love?
We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age.
When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed. For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story), with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them. In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos?
When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older. Or, we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."
These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood. I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.
At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.
August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)