Tuesday, November 24, 2015
While preparing for my part of a program this week in England on comparative social care policies, I was encouraged to look at a visiting health services program in New York City, under the supervision of the Mount Sinai Health System. Karen Miller, a lawyer and former New York administrative judge who now lives in Florida, told me how helpful it had been to have the assistance of a Mount Sinai social worker to coordinate medication, treatment and doctor's visits for her elderly aunt in New York City.
Reading about the Mt. Sinai program, in turn, lead me to a short and very moving essay by David Muller, M.D., a physician and Dean for Medical Education at The Icahn School of Medicine at Mount Sinai, based on his home visit in "Haiti."
Make sure you read your way to page two....there message is eye-opening.
We have all heard stories of an elder making the family promise to never admit the elder into a nursing home. Sometimes, however, people need that level of care, and well-meaning family members are not always able to provide the needed care. That is part of the story of When to Ignore a Promise to ‘Never Put Me in a Home’ which ran in the New York Times on November 9, 2015. The article features an unidentified patient with a huge bedsore, who had extracted such a promise from her family. Following that promise to the letter, the family members did their best to care for her, but despite their best efforts, complications occurred. The doctor authoring the story explained some background
Our patient came from a poor immigrant household without much community support. For years, as she felt herself slipping, she had emphasized over and over again that she never wanted to go into a “home” or be tended by strangers. She wanted to stay at home with her children. Nothing unusual there.
What was unusual was the precision with which her children followed her wishes. As their mother became really confused, then silent, then bedbound, they continued to care for her themselves in the back bedroom.
Turning the focus of the article onto advance directives, and the pros and cons of directives, the doctor writes
[Advance directives] are supposed to give people some control over the future. More often than not, perhaps, the future refuses to be controlled.
Directives may not be detailed enough to help organize a patient’s care. They may be so detailed that doctors and relatives cannot agree on how to interpret the minutiae. Directives may be overlooked in the heat of emergency, ignored out of pure lassitude, or lost somewhere in the closet.
Or, as in our patient’s case, they may be clear and simple, and followed to the letter. And look what happened to her.
The doctor considers health care agents as a better choice, but notes the questions agents must ask principals but frequently don't: "'Do you really want me to do exactly what you are telling me to do? How much wiggle room do I get?'" This is important for many reasons, not the least of which is what you believe and prefer when you sign your directive may not be the same when it is time to use the directive (what the author refers to as the past you and present you).
Our own patient and her family got all bolluxed up in obligations to their past selves. The bottom line was clear — the patient never would have wanted what she got. But even given that, we wondered, when should her children have changed course?
We had no good answers. Our patient spent a few days in the hospital and then went straight to a nursing home to finish a long course of antibiotics and, presumably, to live there for the duration.
Monday, November 23, 2015
Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice
In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely. Key allegations included:
Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.
After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her.
During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."
Sunday, November 22, 2015
As I prepare to speak at a program at the University of Leeds this week on comparative social care systems and legal policies, a headline in The Guardian caught my eye: "Half of UK Care Homes Will Close Unless £2.9bn Funding Gap Is Plugged, Warn Charities." The Guardian reports:
In a joint letter, 15 social care and older people’s groups urge Osborne to use his spending review on Wednesday to plug a funding gap that they say will hit £2.9bn by 2020. They warn that social care in England, already suffering from cuts imposed under the coalition, will be close to collapse unless money is found to rebuild support for the 883,000 older and disabled people who depend on personal care services in their homes.
[Chancellor of the Exchequer] Osborne has already decided to use his overview of public finances to give town halls the power to raise council tax by up to 2% to fund social care, in a move that could raise up to £2bn for the hard-pressed sector. However, the signatories of the letter, such as Age UK and the Alzheimer’s Society, want him to commit more central government funding to social care.
The looming £2.9bn gap “can no longer be ignored”, the letter says. “Up to 50% of the care home market will become financially unviable and care homes will start to close their doors,” it adds. “Seventy-four per cent of domiciliary home-care providers who work with local councils have said that they will have to reduce the amount of publicly funded care they provide. If no action is taken, it is estimated that this would affect half of all of the people and their families who rely on these vital services.”
Osborne’s endorsement of a hypothecated local tax to boost social care comes after intense lobbying behind the scenes and public warnings from bodies such as the King’s Fund health thinktank.
The authors warn the "NHS will be overwhelmed by frail elderly people" in search of care. I was struck by implications that without funding reallocation, England will face staggering hordes of near zombies. There is irony in this imagery, of course, because we spend a heck of a lot of real money on best-selling books, movies and top-rated television shows about fictional zombies, while failing to come to terms with the funding needs for real people. See e.g., this estimate that "Zombies Are Worth Over $5 billion to Economy."
Friday, November 20, 2015
Filial Friday: Court Finds Less Than "Ideal" Childhood Not Enough to Release Duty to Support Indigent Parent
It is, perhaps, a mark of the growing acceptance of filial support obligations in Pennsylvania courts -- although not necessarily equating with understanding by the general public in Pennsylvania -- that a recent appeal from a filial support ruling resulted merely in a "nonprecedential" opinion by the appellate court, one that adopts the findings of the lower court.
In Eori v. Eori, 2015 WL 6736193, (Aug. 7, 2015) the Pennsylvania Superior Court affirmed the trial court's award of $400 per month in support with a short opinion. This ruling obligates one son, the defendant, to contribute financially towards the care of his 90-year old mother, being provided in the home of another brother. The incorporated findings of fact, from the lower court, track a sad family story. One point in dispute was whether the mother's alleged actions during the son's childhood constituted the defense of "abandonment":
Defendant’s next error complained of on appeal pertains to the second defense Outlined in 23 Pa. C.S.A. Section 4603(2)(ii), which negates the obligation of filial support when it is established that the parent seeking support abandoned the child during a ten year period of the child’s minority. In this case, the Defendant argued that he was abandoned and raised as error number six that the trial court failed to consider said testimony. The term “abandoned” is not defined in the act itself, However, the Custody Act at 23 Pa.C.S.A. Section 5402 defines “abandoned” as “left without provision for reasonable and necessary care or supervision.” Defendant testified that he did not have the greatest family growing up and he wanted to get away. . . . He testified that his grandmother cared for him more than his Mother; however, they were never far apart because he testified that his grandmother either lived with Mother or beside Mother. . . . Although he testified that Mother was abusive, left and caused them to move many times, and was either gone or fighting, he never established that she left for a ten year period. He did not provide details or time periods on any of the testimony presented.
The lower court concluded: "Therefore, it was not clear from [son's] testimony that Mother ever left for a ten year period without provision for his reasonable and necessary care or supervision. Although it may not have been an ideal childhood, there was no evidence of abandonment to release Defendant from his obligation to support Mother."
Procedural note: In Pennsylvania, trial judges have the option of waiting to write "opinions" explaining their "orders" until after a notice of appeal is filed by a party. Pennsylvania Rule of Appellate Procedure, Rule 1925. Further, the trial judge can also require the appealing party to file a "statement of errors," in advance of the trial judge's obligation to write an opinion. I don't know how many states use this process, but certainly by comparison to the Federal Rules of Civil Procedure, it is a rather unique opportunity for judges to write an opinion, as did the trial judge in the Eori case, that, in essence, expresses views on the merits of the "appeal."
For those gathering together as family for Thanksgiving next week, perhaps this case history provides lessons.
Thursday, November 19, 2015
On November 26, 2015, the University of Leeds' School of Law in England will be host to a program on "Yours, Mine or Ours: Who is Responsible for Social Care of Older Persons?" I'm very pleased to be part of the panel, under the leadership of Professor Subhajit Basu, PhD. We will use a research report we completed with colleagues in 2015 for the Commissioner of Older People in Northern Ireland (COPNI), to offer comparative international examples of legislation and public policy initiatives that support the wide array of potential care needs for older persons. We'll be looking beyond the needs for health care.
One likely focus of the discussion is a proposal for a state-supported home visits by trained professionals, including social work professionals, for individuals age 75 or older, with a goal of providing advance assistance to the individual or family in meeting needs. The proposal now under consideration in Northern Ireland has roots in other jurisdictions we studied, including Denmark.
In Denmark, one of the inspirational leaders for "preventative home visits" is Mikkel Vass, M.D. at the University of Copenhagen. Beginning in 1998, Danish laws established an obligation for municipalities to offer "all citizens 75 years and older two annual preventative home visits." A great deal of freedom to design the content of the home visits was given to the municipalities, but the goals are:
- to support personal resources and networking; and
- to offer social support, thereby preserving functional ability
In his study of 15+ years of home visit operations, Dr. Vass concludes that with a nationally-supported home visitation program:
- Functional decline can be prevented;
- Education of professionals makes a difference to the interview success;
- Interdisciplinary education makes a greater difference to the program success;
- To maintain effectiveness, education must be ongoing and based on simple messages and professional routines that respect local healthcare cultures; and
- Operation can be cost-neutral.
Cost neutrality -- that will be important to every element of modern social care programs -- including home visits.
Wednesday, November 18, 2015
Washington State Elder Law Attorney Margaret Dore has shared with us her interesting analysis of "California's Assisted Suicide Law: Whose Choice Will It Be?," published here in JURIST, the on-line platform by University of Pittsburgh Law. She criticizes California's new law as inviting misuse, including elder abuse, observing:
The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death.
ABX2-15 allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.
Further, she notes the potential trauma for family members, citing examples from her practice:
Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.
Ms. Dore is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.
Monday, November 16, 2015
Psychology Researchers, William Damon and Anne Colby, in Stanford University's Graduate School of Education, are teaming with a San Francisco-based nonprofit organization, Encore.org, on a three phased study to understand the nature and determinants of "purposeful" living in the so-called "encore" years of life, ages 50 to 75.
The $1.8 million study was inspired by a troubling fact: Relatively few older adults have found purposeful engagements that they act on in a sustained way. Yet research suggests that there is significant untapped potential for this kind of engagement. In one recent Encore.org survey, 87 percent of older respondents said they felt a responsibility to help those less fortunate than themselves, and 70 percent said that it was important to leave the world a better place.
The projects phases include:
- Part 1 is a study to be conducted by the Stanford research team which will include a national survey and in-depth interviews to investigate how Americans with varied histories, values, needs, and opportunities make sense of their lives between midlife and old age, what they wish for, and whether they’re able to realize their aspirations.
- Part 2 is a data collection effort to create an up-to-date database of existing programs that help people in their later years develop and maintain purposeful lives.
- Part 3 is an engagement and implementation phase, which will bring the insights of Part 1 and the resources identified in Part 2 to the general public and to many different kinds of organizations and programs that support purpose in later life. In doing so, Part 3 intends to shift popular conceptions of the encore years and strengthen institutional mechanisms that support many varieties of purposeful aging.
Thanks to Dickinson Law Professor Laurel Terry for sharing news of this interesting study.
Thursday, November 12, 2015
On Tuesday, November 17, from 9 to 11 a.m., the National Press Club in Washington, D.C., will be the site for a fascinating mix of industry experts, government leaders and commentators interested in aging to talk about "Financing Long-Term Services and Supports." The event will spotlight a forthcoming article in the monthly journal, Health Affairs.
A forthcoming "Web First" article in Health Affairs, "Financing Long-Term Services And Supports: Options Reflect Trade-Offs For Older Americans And Federal Spending," examines how policy changes could expand insurance's role in financing these needs. The study, by authors Melissa M. Favreault, Howard Gleckman and Richard W. Johnson of the Urban Institute, contains several policy modeling options to address the long-term care financial crisis affecting millions of Americans, as well as baseline findings on the long-term care landscape. The work was funded by The SCAN Foundation, AARP, and LeadingAge.
The panel speakers scheduled to appear include:
- Bruce A. Chernof, M.D., President and CEO, The SCAN Foundation
- Melissa M. Favreault, Senior Fellow, Income and Benefits Policy Center, Urban Institute
- Richard Frank, Assistant Secretary for Policy Evaluation, US Department of Health and Human Services
- Chris Giese, Actuary, Milliman, Inc.
- Richard W. Johnson, Senior Fellow, Income and Benefits Policy Center, and Director, Program on Retirement Policy, Urban Institute
- Larry Minnix, President and CEO, LeadingAge
- Al Schmitz, Principal, Consulting Actuary, Milliman, Inc.
- Eileen Tell, Long Term Care Group
- Debra Whitman, Executive Vice President, Policy, AARP
More information on registration here. Special thanks to my Dickinson Law Colleague and health care expert, Jennifer Davis-Oliva, for the reminder of this event.
Renowned Cornell educators and specialists in geriatric medicine, Mark S, Lachs, M.D., and Karl A. Pillemer, PhD, have an important review essay in the current issue of the New England Journal of Medicine on "Elder Abuse" (linked above). The authors articulate roles for physicians and health care staff as the first line of help for many older persons who are victims of elder abuse, including the "virtual epidemic" of financial exploitation. From the introduction:
In the field of long-term care, studies have uncovered high rates of interpersonal violence and aggression toward older adults; in particular, abuse of older residents by other residents in long-term care facilities is now recognized as a problem that is more common than physical abuse by staff. The use of interdisciplinary or interprofessional teams, also referred to as multidisciplinary teams in the context of elder abuse, has emerged as one of the intervention strategies to address the complex and multidimensional needs and problems of victims of elder abuse, and such teams are an important resource for physicians. These new developments suggest an expanded role for physicians in assessing and treating victims of elder abuse and in referring them for further care.
In this review, we summarize research and clinical evidence on the extent, assessment, and management of elder abuse, derived from our analysis of high-quality studies and recent systematic studies and reviews of the literature on elder abuse.
One of the perhaps surprising observations in the article is that the "young-old" actually have a higher potential to become victims of abuse than the "old-old," in part because they are most likely to be living under the control of a spouse or adult child, the most often-identified perpetrators.
Further, the authors advise that "the most important tasks for the physician are to recognize and identify elder abuse, to become familiar with resources for intervention that are available in the local community, and to refer the patient to and coordinate care with those resources." The article includes community services and organizations that may provide help to victims.
I was especially interested to see the authors' thoughts on the importance of interdisciplinary teams, especially given my own law school's current involvement in creating a Medical Legal Partnership Clinic. The authors write:
The most promising response to the complex nature of cases of elder abuse has been the development of interprofessional teams. Evidence suggests that interprofessional teams, also referred to as multidisciplinary teams, consisting of physicians, social workers, law-enforcement personnel, attorneys, and other community participants working together in a coordinated fashion, are the best practical approach to assisting victims.
Our thanks to "devoted reader" Professor Dick Kaplan, University of Illinois Law, for providing us with early notice of this important article.
Wednesday, November 11, 2015
In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice." His overview provides:
Our Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future. The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice. In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system. In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system. Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations. Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.
As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.
Monday, November 9, 2015
Professor Janet Dolgin from Hofstra University has a very good article in the October 2015 issue of ABA's The Health Lawyer on "Reimbursing Clinicians for Advance-Care Planning Consultations: The Saga of a Healthcare Reform Provision." The article offers facts, analysis, historical perspective and opinion about the need to approve payment to health care providers in order for them to be able to engage fully with clients and their families in careful conversations about advance care planning, including end-of-life decisions. The article is concise, but the downside for interested readers is the digital version of the article is currently behind a pay-wall for ABA Health Care Section members only.
To stimulate your interest in tracking down a hard copy, perhaps through your law colleagues or local law libraries, here are a few highlights. Professor Dolgin writes:
Advance care planning is part of good healthcare. Thus, paying clinicians to talk with patients about advance care planning makes sense: it enhances advance care planning and thereby serves to effect good healthcare. "If end-of-life discussions were an experimental drug," writes Atul Gawande in his recent book, Being Mortal, "the FDA would approve it." Yet efforts to provide for reimbursement to clinicians for time and attention given to advance-care-planning conversations with Medicare patients have been stymied since 2009 (at least until quite recently) by the politics of healthcare reform....
Published, peer-reviewed research shows that ACP [Advance Care Planning] leads to better care, higher patient and family satisfaction, fewer unwanted hospitalizations, and lower rates of caregiver distress, depression and lost productivity....
In July 2015 CMS accepted the recommendation [supported by AARP, the AMA and others identified in the article] and opened the proposal to [pay health care clinicians for such consultations] to a two month-comment period in its proposed physician payment schedule for 2016.... If the proposed rule is accepted by CMS, payments for advance-care planning consultations are slated to begin in early January 2016.
The article demonstrates well the tension between the use of administrative law options to achieve what Congress finds unable or unwilling to address as a matter of Congressional laws. Of course, administrative processes can gore the ox of either side on a politically-charged debate.
Perhaps I am alone in being sad that it takes billing codes approved by insurance providers and CMS to achieve appropriate consultation between health care staff and families about advance decision-making. But Professor Dolgin's article is a realistic explanation for exactly why that "is" necessary.
November 9, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink
Thursday, November 5, 2015
Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?
In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence." Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear.
In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012, after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer:
Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.
"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.
Tuesday, November 3, 2015
A recent article in the Wall Street Journal focuses on challenges in state courts to how guardianships operate and the role of courts in appointment and oversight of guardians. Titled "Abuse Plagues Systems of Legal Guardianships for Adults," the on-line version of the article carries the subtitle of "Allegations of financial exploitation and abuse are rife, despite waves of overhaul efforts." The article uses extensive details from just two guardianship caess, one in the state of Washington involving a 71 year-old woman, and one in Florida involving an 89 year-old "mother," to develop its theme of financial exploitation and abuse, pointing to critics that say "many elderly people with significant assets become ensnared in a system that seems mainly to succeed in generating billings."
The article includes statements from National Academy of Elder Law Attorneys president elect, Catherine Seal, providing a contrasting view of properly-managed guardianships. She is quoted as saying, "The worst cases that I see are the ones where there is no guardian."
Arizona is identified in the article as a state that has adopted safeguards on unnecessary or abusive fees "by establishing fee guidelines" in 2012. Of course it did so after a significant 2010-2011 investigative news series by the Arizona Republic in Maricopa County that exposed a series of cases in which court permitted fees and delays significantly impacted the alleged incapacitated persons' financial resources.
The WSJ article, I think, can be criticized for using just two cases of conflict to dramatize allegations of systemic problems, characterized as exploitation. We need to talk about systemic reform needs by looking beyond single case reports
It seems clear, however, if you follow the pockets of deeper investigations from across the nation, including recent challenges in Florida and Nevada where allegations focused on an array of court-permitted problems, including delays generating more costs, or overly cozy relations between court-appointed guardians and courts, or the absence of monitoring systems, that there are larger systemic issues in need of watchful eye and, in certain jurisdictions, critical examination and reform.
My thanks to Marilyn Berquist and Rick Black for recommending the WSJ article.
Wednesday, October 21, 2015
The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust." The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:
Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms.
The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children. The issue ends with a bonus -- a primer on "will basics."
The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away.
The entire issue seems like a good resource for a wide audience, including law students. Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of publication. Apparently you can purchase paper copies (see for example the rates for the previous issue, for Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase. I guess you have to keep checking!
October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, October 15, 2015
When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?
Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent. My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.
But something in the back of my mind was itching, and of course, over the weekend I started scratching. I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law."
The case is from California, where divorcing spouses were arguing over division of community property. One focus of the disputes was proceeds of the sale of a former house. While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt." Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.
Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."
The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.
On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself." For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).
Wednesday, October 14, 2015
I'm always playing catch-up on my "must read" list, but fortunately, others keep me on task. One such article is Florida State Medicine and Law Professor Marshall Kapp's piece, inspired in part by Hendrik Hartog's 2012 book, Someday All This Will Be Yours.
In For Love, Legacy, Or Pay: Legal and Pecuniary Aspects of Family Caregiving, published by the Springer Journals of Case Management, Professor Kapp begins with this overview and note of caution about legal planning:
Most caregiving and companionship provided by family members and friends to elder individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment. From a legal perspective, though, it might be ill-advised for an informal caregiver to admit to such a motivation.
He advises consideration of personal service or personal service agreements, explaining:
We must reject an analytically attractive and pure, but never really socially realistic, tendency to dichotomize the caregiver experience, recognizing instead that a person may simultaneously be both a family member, with the related emotional and ethical connotations of that label, and a business employee. Morality and materiality are not incompatible. Caregiving can be both an act of love and a marketable commodity bought and sold between non-strangers.
As Professor Kapp points out, if we as a society really wanted to encourage family caregiving without all too vague promises about future inheritances, we could go beyond mere tax credits and "instead use public funds to pay family caregivers directly."
Tuesday, October 13, 2015
In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs. But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"
A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients. In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem. The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.
In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."
The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."
As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available."
However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent. Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.
Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."
The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest. Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.
The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care."
The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."
October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, October 12, 2015
Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity. I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys."
In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.
He notes at the outset:
According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.
Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:
A two-prong test may be useful when determining the existence and degree of a client's mental illness:
(1) "take reasonable steps to optimize capacity," and
(2) "perform a preliminary assessment of capacity."
Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity: How Do You Know It And What Do You Do About It?"
I suppose I do have a small quarrel with the author, however. The title of his post is "What They Didn't Teach You in Law School: Representing Client with Diminished Capacity." Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time. Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times. Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law. Other faculty members address mental health in a variety of other contexts, including courses on education law.
If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better."
My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article.
October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)
Friday, October 9, 2015
In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.
This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is. We were talking about his research-based observation in the book about adult children and needy parents:
Adult children were not legally bound to remain and to work for their parents. Nor were they obligated to care for the old. Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.
I asked, "what about filial support laws?" Turns out that was a timely question because Professor Hartog had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015. In the interview Professor Hartog was asked to comment on filial support laws. He said in part:
Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced. Very, very, very, very rarely. So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers.
Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s. And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits. But...
I think the modern story is quite different in at least one state -- Pennsylvania. Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era. Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.
Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany.
Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.
This seems a more realistic paradigm, although not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.
October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)