Thursday, June 22, 2017

ACTEC Engagement Letters

We previously let you know that ACTEC has released the 5th edition of its Commentaries to the Model Rules of Professional Conduct. Now ACTEC has released a new edition of their engagement letters. Engagement Letters A Guide for Practitioners (3rd ed. 2017) is available as a pdf.  There are 9 chapters with introductions, explanations, checklists and forms.  The introduction explains the book's organization:

Following this introduction, there is a general checklist designed to aid the lawyer before preparing the engagement letter in any trust and estate representation. The general checklist includes cross references to the specific checklists and forms that follow. Following the general checklist, there are nine chapters, each with a basic engagement letter form or specific language to be added to, or used in conjunction with, a basic engagement letter form addressing:

Chapter 1: Estate Planning Representation of One Person or Spouses;

Chapter 2: Representation of Multiple Members of the Same Family Other Than or in Addition to Spouses;

Chapter 3: Representation of Multiple Parties in a Business Context;

Chapter 4: Estate Planning Lawyer Serving as a Fiduciary;

Chapter 5: Representation of Executors and Trustees in Administration Matters;

Chapter 6: Representation of Guardians/Conservators;

Chapter 7: Probate Litigation;

Chapter 8: Dealing with Diminished Capacity or Death of a Client Not Represented in a Fiduciary Capacity;

Chapter 9: Termination of Representation.

The introduction also offers a caution regarding the use of forms, a great reminder for all attorneys.

 

 

June 22, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues | Permalink

Tuesday, May 30, 2017

New Casebook: Caring For Older People in an Ageing Society

Last week I received an email from the Hastings Center with the subject line "What Do We Owe the Frail Elderly?"  This intrigued me because I often have a conversation with my students about what, if anything, we "owe" the generation before us. I typically have this conversation in the context of discussing funding of public benefits and other programs specifically for America's elders.   Here is the information about the casebook

A woman juggles caring for her aged father at home and going to work. A volunteer cares for an 83-year-old man who lives alone and wonders why the man’s son doesn’t take more of an interest. Staff members at a nursing home, discussing a patient with dementia who hits staff members, consider whether it’s acceptable to control his behavior with antipsychotic medication, knowing that antipsychotics increase the risk of stroke in people with dementia. These are three of the 10 cases in Caring for Older People in an Ageing Society, the second edition of an online bioethics casebook launched this week. The casebook aims to support professional and family caregivers by helping them recognize and respond to situations that pose ethical uncertainty... The bioethics casebook was the product of a project with the National University of Singapore Centre for Biomedical Ethics, The Hastings Center, and Oxford University’s Ethox Centre. Explore the Casebook

Additional information about the book is available from The Hastings Center website: "an innovative web-based casebook that focuses on ethical challenges of caring for people in an aging society. It is geared to those who provide community-based care to frail or chronically ill people living at home, in a family member’s home, or in a nursing home. The casebook will include fictional cases along with ethics commentaries, clinical perspectives, reflection and discussion questions, and other resources...."

This second volume of the casebook focuses on elders while the first volume focuses on difficult decisions. For more information, click here.
 

May 30, 2017 in Advance Directives/End-of-Life, Books, Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, May 23, 2017

Growing Opposition to Consolidation of Departments of Aging into Other State Departments

As I reported here for the first time recently, Pennsylvania's Governor Wolf has proposed consolidation -- or as he prefers to call it -- unification -- of four separate administrative agencies, the Departments of Aging, Health, Human Services (formerly Public Welfare) and Drug & Alcohol Treatment Programs.  Are similar budget-driven changes occurring in your state?

As I catch up with events in Pennsylvania, I'm learning from readers about growing concerns about the possible merger.  

  • As one recently retired PA legislator pointed out, there seems to be little in the way of a written plan for how services will be handled under this merger.  Rather, the merger appears mostly as a description of budget items, with a lot of "minus" signs to indicate cuts.  Perhaps by design, Pennsylvania government is often a bad example of transparency for governments.  What is the real plan, if any?  
  • With the consolidation, at a minimum, older Pennsylvanians would be losing a cabinet level post, their singular, dedicated spokesperson. This would be likely to affect all future budget and programming battles.
  • The timing is, to use a favorite Trump adjective, "sad."  While the leading edge of the big wave of aging baby boomers began to be felt a few years ago when those born in in 1945 started turning age 65 in 2010, the "real" need for an effective advocate is when boomers start turning age 75, age 80 and so on, the higher ages when they are more likely to need or question access to services.

Perhaps of greatest significance is the potential impact of consolidation on the process for assessment of need for services and assistance, especially Medical Assistance.  

Under the current allocation of resources, "assessment" of need is handled by individuals employed under the authority of Pennsylvania's Department of Aging.  

However, the financial allocations are currently determined under the authority of the Department of Human Services.  Consolidation might make sense on paper, but wait

As one of my mentors in aging, Northern Ireland's former Commissioner of Older People Claire Keatinge, says, to be helpful, fair and effective, any individual assessment of need for health care, social care and security, should be exactly that -- individualized and focused on the client,  and should not be simply a match to "what services (if any) are available."  That process-based distinction is critical to determining current and future funding priorities.

In Pennsylvania, the lion's share of budget and personnel for aging services has long been housed in the Department of Human Services (formerly Public Welfare), but those workers -- perhaps by necessity and perhaps by design, have often functioned as dedicated bean counters, as in "here's what services we fund, so do you or don't you meet the eligibility criteria?"  

By losing the aging assessment focus of the current Department of Aging, it seems likely the state would compromise, and perhaps lose entirely, the independent thinking and opportunity for critical needs-based assessment.

Several elder-focused organizations have raised these and other key points in opposition to the existing budget-based consolidation proposal.  Those active in the debate include:

  • The Pennsylvania chapter of the National Association of Elder Law Attorneys (PAELA)  has asked thoughtful legislators to "oppose such consolidation" as presented in the current budget proposal.   As Pittsburgh Elder Law attorney Julian Gray testified on May 1 in state Senate hearings, a "bigger" agency is not necessarily a "better" agency. 
  • Representatives for the service organization for Pennsylvania senior service workers, P4A, testified strongly in favor of the role of the Department of Aging as the advocate for the "unique needs of seniors."  Speakers focused too on the Department's historical role in protecting and managing a unique funding stream dedicated to seniors, "lottery" funds.
  • Long-time practitioner and elder law guru, Jeff Marshall, has a comprehensive commentary, with links, detailing the history and importance of Pennsylvania's Department of Aging.  There's a simple bottom line expressed here -- "if it ain't broke, don't fix it."  
  • Related articles

May 23, 2017 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Medicaid, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 22, 2017

NAELA Chapter Joins as Amicus for New York Aid in Dying Case

In what is described as a "first" for the National Academy of Elder Law Attorneys (NAELA), the organization through its New York Chapter will present argument on behalf of individuals seeking to establish access to "aid in dying."  On April 27, the New York Chapter was granted leave to appear as amicus curiae in Myers v. Schneiderman before the New York Court of Appeals.  Oral arguments are scheduled in Albany on May 30, 2017.

At issue is New York's penal law prohibiting assistance in "suicides."  The original suit, filed in February 2015, sought a ruling that the statute, characterized by opponents as "antiquated," should be interpreted as not reaching the conduct of a physician that provides aid-in-dying where the patient is terminally ill and mentally competent and voluntarily seeks "terminal medication."  Alternatively, the opponents of the law argue that the statute violates the rights of privacy and/or equal protection guaranteed by the New York State Constitution. New York's trial level court dismissed the challenge as a matter of law, on the grounds that New York's penal law was "clear on its face."  

In joining the challenge to the dismissal, which was affirmed by  appellate division, New York NAELA wrote:

As an organization of lawyers who represent the elderly and persons with disabilities, the New York Chapter [of NAELA] believes that a proper interpretation of New York's "assisted suicide" laws and due consideration of Appellants' constitutional challenges should be based on a fully developed factual record.  These are issues of great moment to the elderly and those who love them and to the administration of justice in this State.  This Court should have the benefit of a hearing and findings of relevant evidence before deciding them. . . .

What would assist this Court in fairly construing the Penal Law are facts relating to aid-in-dying.  While the language of the statute is the starting point for interpretation, its words do not exist in a vacuum.   

For more on the arguments, including links to the various parties' appellate briefs in Myers, see the "End of Life Liberty Project."

 

May 22, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Discrimination, Ethical Issues, Health Care/Long Term Care, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 15, 2017

Elder Financial Abuse Video from Pennsylvania Departments of Banking and Aging

Here's a seven-minute video on elder financial abuse, focusing mostly on "scam artists," from the Pennsylvania Departments of Aging and Banking & Securities.  You might find this useful for classes.

I found the discussion of "mild cognitive impairment" interesting, especially as it allows a conversation about planning without the dreaded words, dementia or Alzheimer's Disease.

May 15, 2017 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film | Permalink | Comments (0)

Friday, May 12, 2017

Preventative "Support Visits" Starting at Age 75 under Consideration in Northern Ireland

On May 10, 2017, my research colleagues Gavin Davidson (Queens University Belfast) and Subhajit Basu (University of Leeds) participated in a policy briefing at Stormont, the Northern Ireland Assembly in Belfast.  They appeared in support of recommendations by the Commissioner of Older People (COPNI) Eddie Lynch on a major plan for modernization of social care programs for vulnerable adults (of any age).

Professors Davidson and Basu focused on three key recommendations:

  1. Northern Ireland should have a single legislative framework for adult social care with accompanying guidance for implementation. This could either be new or consolidated legislation, based on human rights principles, bringing existing social care law together into one coherent framework.
  1. All older people in Northern Ireland, once they reach the age of 75 years, should be offered a Support Visit by an appropriately trained professional. This will be based on principles of choice and self-determination and is aimed at helping older people to be aware of the support and preventative services that are available to them.
  1. Increasing demands for health and social care reinforce the importance of considering how these services should be funded. All future funding arrangements must be equitable and not discriminate against any group who may have higher levels of need.

The audience, which included researchers, social service program administrators and elected officials (not only from Northern Ireland, but elsewhere, including the Isle of Man), reportedly responded strongly to the recommendations, especially to the concept of specially-trained "support visitors," offered to persons age 75 or older. The intent is to provide individuals with planning support and, where needed, medical assessment.  Guidance and information is often needed for pre-crisis planning, thus moving in the direction of prevention of crises and reduction of need for last-minute response. The support visitor concept has been used successfully in Denmark and other locations in Europe.  The next step for Northern Ireland would likely be a pilot or test project.  

As a co-author of the research reports that led to the COPNI recommendations, working with Professors Gavin Davidson and Subhajit Basu as part of a team headed by Dr. Joe Duffy of Queens University Belfast, I found it an interesting coincidence that at almost the same time as the Northern Ireland government session, I was addressing similar interests in "preventative" planning while speaking on elder abuse in a "Day on the Hill" program at the Capitol in Pennsylvania, hosted by the Alzheimer's Association.  It is clear that on both sides of the Atlantic, we are interested in cost-effective, proactive measures to help people stay in their homes safely.   

May 12, 2017 in Consumer Information, Crimes, Ethical Issues, Health Care/Long Term Care, International, Retirement, Social Security, Statistics | Permalink | Comments (1)

Wednesday, May 10, 2017

Taking a Closer Look at "Gray Divorce" Statistics

Writing for the Institute for Family Studies, George Washington Law Professor Naomi Cahn and University of Minnesota Law Professor June Carbone dig into the black and white of statistics on "gray" divorce, with interesting observations. For example:

First, some good news for everyone: the divorce rate is still not all that high for those over the age of 50. Yes, it has doubled over the past 30 years: in 1990, five out of every 1,000 married people divorced, and in 2010, it was 10 out of every 1,000 married people. And yes, the rate has risen much more dramatically for gray Americans than for those under 50; in fact, there was a decline in the rate for those between the ages of 25-39. But the divorce rate for those over 50 is still half the rate for those under 50.

Divorce for older individuals often does have significant impacts for individuals in retirement, as they point out:  

These statistics don’t mean that gray divorce isn’t a problem. Those who divorce at older ages, like those who divorce at younger ages, tend to have less wealth than those who remain married, with the gray divorced having only one-fifth of the assets of gray married couples. Compared to married couples, gray divorced women have relatively low Social Security benefits and relatively high poverty rates. While gray married, remarried, and cohabiting couples have poverty rates of four percent or less, 11 percent of men who divorced after the age of 50 were in poverty, and 27 percent of the women were in poverty.

For more, read "Who is at Risk for a Gray Divorce?  It Depends."

May 10, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Retirement, Social Security | Permalink | Comments (0)

Wednesday, March 8, 2017

Are Inadequately Funded Retirement Plans the Latest Ponzi Scheme?

The teachers' pension fund in Puerto Rico is the latest example of an under-funded government-operated retirement plan. A unique complication of the Puerto Rico teachers' plan is the decision to opt out of Social Security as a separate form of retirement income.  In a recent New York Times article, the reporter makes the the analogy to a Ponzi scheme:

Puerto Rico, where the money to pay teachers’ pensions is expected to run out next year, has become a particularly extreme example of a problem facing states including Illinois, New Jersey and Pennsylvania: As teachers’ pension costs keep rising, young teachers are being squeezed — sometimes hard. One study found that more than three-fourths of all American teachers hired at age 25 will end up paying more into pension plans than they ever get back.

 

“I think they’re really being taken advantage of,” said Richard W. Johnson of the Urban Institute, a co-author of the research. “What’s so tragic about this is, often the new hires aren’t aware that they’re getting such a bad deal.”

 

The problem is magnified by the fact that the Puerto Rico teachers union — like many teachers and police unions around the country — opted out of Social Security long ago, hoping it could save both workers and the government money by not paying Social Security taxes.

 

That decision was predicated on the assurance that the workers’ pensions would be well managed and adequately funded. But in Puerto Rico, as in some other places, that has not been true for decades.

For more, read In Puerto Rico, Teachers' Pension Fund Works Like a Ponzi Scheme.

 

March 8, 2017 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Retirement, Social Security | Permalink | Comments (0)

Tuesday, March 7, 2017

In Case You Missed It: Sister Shares Moving Account of Early Onset Dementia

From the Washington Post, an especially moving account written by former White House Communications Director Jennifer Palmieri about her sister, who died at age 58 following some ten years with "early onset" Alzheimer's:

Every day, more Americans receive the devastating news that someone in their family has this affliction. For now, there is not a lot of hope for recovery. It can make you envious of cancer patients; their families get to have hope. Having come through this experience with my sister, I am afraid that I can’t offer these new Alzheimer’s families hope for a recovery. But I do hope that by relaying the story of my sister’s journey, I can offer them some peace.

 

My sister Dana was brilliant, beautiful, full of positive energy, a force of nature. She was not an easy person. She was driven and successful, and, as the disease progressed unbeknown to all of us, it became harder to connect with her. Ironically, that began to change once she got the diagnosis.

 

When she called each of us with the news, she already had it all figured out. We were all to understand that, really, she saw the diagnosis as a blessing. It was going to allow her to retire early. It would motivate our family to spend time together we would not have otherwise done. It would shorten her life, but she would make sure the days she had left were of the highest quality.

The thoughtful piece can help all of us as we and our family members tackle challenges.  For more, read The Blessings Inside my Sister's Alzheimer's Disease.

March 7, 2017 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Retirement, Science | Permalink | Comments (0)

Tuesday, February 28, 2017

More on Supreme Court Nominee Neil Gorsuch on End-of-Life Issues

Paula Span, the thoughtful columnist on aging issues from the New York Times, offers "Gorsuch Staunchly Opposes "Aid-in-Dying." Does It Matter?"   The article suggests that the "real" battle over aid-in-dying will be in state courts, not the Supreme Court.

I'm in the middle of reading Judge Gorsuch's 2006 book, The Future of Assisted Suicide and Euthanasia. There are many things to say about this book, not the least of which is the impressive display of the Judge's careful sorting of facts, legal history and legal theory to analyze the various advocacy approaches to end-of-life decisions, with or without the assistance of third-parties.  

With respect to what might reach the Supreme Court Court, he writes (at page 220 of the paperback edition): 

The [Supreme Court's] preference for state legislative experimentation in Gonzales [v. Oregon] seems, at the end of the day, to leave the state of the assisted suicide debate more or less where the Court found it, with the states free to resolve the question for themselves.  Even so, it raises interesting questions for at least two future sorts of cases one might expect to emerge in the not-too-distant future.  The first sort of cases are "as applied" challenges asserting a constitutional right to assist suicide or euthanasia limited to some particular group, such as the terminally ill or perhaps those suffering grave physical (or maybe even psychological) pain....

 

The second sort of cases involve those like Lee v. Oregon..., asserting that laws allowing assisted suicide violate the equal protection guarantee...."

While most of the book is a meticulous analysis of law and policy, in the end he also seems to signal a personal concern, writing "Is it possible that the Journal of Clinical Oncology study is right and the impulse for assistance in suicide, like the impulse for old-fashioned suicide, might more often than not be the result of an often readily treatable condition?" 

My thanks to New York attorney, now Florida resident, Karen Miller for pointing us to the NYT article.

February 28, 2017 in Advance Directives/End-of-Life, Consumer Information, Crimes, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Religion, Science, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 27, 2017

Will "Everyday Americans" Lose Potential Protections re Investment Advice?

NPR had a good recent summary of the politics behind opposition to full implementation of fiduciary duty standards for investment brokers in providing retirement advice: 

Over the past two weeks, the Trump administration has taken steps to delay and perhaps scuttle a new rule designed to save American workers billions of dollars they currently pay in excessive fees in their retirement accounts.

The Obama administration spent 5 years crafting the rule through the Labor Department. It requires that financial advisers and brokers act in their customers' best interest when offering them investment advice for their workplace retirement accounts. Firms must comply by April [2917 under the current rule].

As the commentary pointed out, early-on Trump pledged to support the interests of ordinary working Americans and to take on Wall Street:

In his inauguration speech, President Trump talked about giving America back to everyday working Americans. In one of the more memorable moments, the president said, "The forgotten men and women of our country will be forgotten no longer."

The fiduciary duty rule for investment brokers directly signals the tension between President Trump's pledge to working Americans and his career-long focus on big business.

AARP supports the rule, recognizing that the U.S. has an "under savings" problem. Distrust of investment advisers plays into the reluctance of ordinary Americans to engage in professionally-assisted planning for the future.  Will AARP rally retirees to resist repeal or delay of the fiduciary duty rule? 

For more, read or listen to Trump Moving to Delay Rule that Protects Workers from Bad Financial Advice.Trump Moving To Delay Rule That Protects Workers From Bad Financial Advice and White House to Investors: Put Savers' Interests First.

Warren Buffett has been counseling -- for years -- to avoid high fee "experts" for investment advice, recommending the use of index funds instead.  See e.g. Newsday's "Warren Buffett Says Don't Waste Money on Investment Fees." 

 

February 27, 2017 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Retirement | Permalink | Comments (0)

Friday, February 24, 2017

Washington State Discusses Expansion of Limited License Legal Technicians to Estate & Health Care Law

In 2012, the Washington Supreme Court approved Admission to Practice Rule 28, which created a new program for authorization of "limited license legal technicians," also known as LLLTs or "Triple L-Ts." The express purpose of the program was to meet the legal needs of under-served members of the public with qualified, affordable legal professionals, and the first area of practice chosen was domestic relations.  With that first experience in hand, in January 2017, the Washington State Bar Association has formally proposed expansion of the LLLT program to enable service to clients on "estate and health law."  

As described in the Washington State Bar Association materials, this expansion will include "aspects of estate planning, probate, guardianship, health care law, and government benefits. LLLTs licensed to practice in this area will be able to provide a wide range of services to those grappling with issues that disproportionately affect seniors but also touch people of all ages who are disabled, planning ahead for major life changes, or dealing with the death of a relative."  The comment period is now open on the proposed expansion.

For more about this important innovation, there was an excellent 90 minute-long webinar hosted by the Washington Bar in February 2017, with members of the Limited License Legal Technician Board explaining the ethical rules (including mandatory malpractice insurance), three years of education and 3000 hours of experience required for LLLTs to qualify.  Now available as a recording, the comments from the Webinar audience, including lawyers concerned about the potential impact on their own practice areas, are especially interesting.  

Many thanks to modern practice-trends guru, Professor Laurel Terry at Dickinson Law, for helping us to keep abreast of the Washington state innovation. 

February 24, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Thursday, February 23, 2017

North Carolina Appeals Ct Declines to Recognize Pre-Death Cause of Action for Tortious Interference with Expectancy

An interesting decision addressing standing issues arising in the context of a family battle over an 87-year old parent's assets was issued by the North Carolina Court of Appeals on February 21, 2017.  In Hauser v Hauser, the court nicely summarizes its own ruling (with my highlighting below): 

This appeal presents the issues of whether (1) North Carolina law recognizes a cause of action for tortious interference with an expected inheritance by a potential beneficiary during the lifetime of the testator; and (2) in cases where a living parent has grounds to bring claims for constructive fraud or breach of fiduciary duty such claims may be brought instead by a child of the parent based upon her anticipated loss of an expected inheritance. [Daughter] Teresa Kay Hauser (“Plaintiff”) appeals from the trial court's 3 March 2016 order granting the motion to dismiss of [Son] Darrell S. Hauser and [Son's Wife] Robin E. Whitaker Hauser (collectively “Defendants”) as to her claims for tortious interference with an expected inheritance, constructive fraud, and breach of fiduciary duty as well as her request for an accounting. Because Plaintiff's claims for relief are not legally viable in light of the facts she has alleged, we affirm the trial court's order.

The succinct North Carolina opinion, declines to follow the logic of Harmon v. Harmon, a 1979 decision from the Maine Supreme Court, that addressed the "frontier of the expanding field" on torious interfence of with an advantageous relationship, by recognizing a "pre-death" cause of action. 

Currently the North Carolina opinion is available on Westlaw at 2017 WL 672176; I'll update this post with a open access link if it becomes available.  

February 23, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 22, 2017

Are Seniors the Target of Unfair Foreclosures in Florida Reverse Mortgage Cases?

The marketers of reverse mortgages often paint a rosy picture of how seniors will be able to draw on the equity in their homes to cover daily expenses, without risk of repayment before death.  But details of these mortgages can be overlooked and as we've reported before, seniors can be surprised when terms and conditions create traps that can lead to foreclosure.  However, from Florida, we're now hearing about cases where one of the simplest conditions -- the borrower continuing to live on site -- has become the subject of litigation.  

From Law.com:

“All of a sudden, we saw a spate of foreclosures where the mortgage companies alleged the seniors no longer lived in the home,” said Gladys Gerson, supervising attorney for Coast to Coast Legal Aid of South Florida’s senior unit. “This has been happening around the state.”

 

About a dozen similar cases reached Gerson and other attorneys at Coast to Coast, who have helped a growing number of low-income seniors fight and win dismissals despite aggressive lender litigation.

 

Florida is ground zero for seniors’ issues, but as the strategy has often proved effective, it’s likely to spread, according to defense attorneys. “If you see the volume of national advertising that’s geared to seniors, I can’t believe this is limited to Florida,” Corona’s father and partner, Ricardo, said. “The servicers are not even based in Florida, so I don’t see why they would limit themselves.”

 

Corona admits he didn’t expect a hard fight when he first reviewed El Hassan’s case, but court records show he was wrong. Over the last 10 months, the ongoing litigation yielded two hearings, 40 docket entries and attempts by both sides to collect attorney fees.

For more, read the full article, Foreclosure Litigation Strategy Takes Aim at Seniors, Attorneys Say.

Thank you to my colleague, Dickinson Law Professor Laurel Terry, for this source.  

February 22, 2017 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Housing, Retirement | Permalink | Comments (0)

Tuesday, February 21, 2017

Texas Elder Abuse Statute Used to Convict and Sentence Doctor to Life in Prison

The deeply disturbing medical practice history of Christopher Duntsch, who worked as a neurosurgeon in Texas until 2013, culminated in his February 2017 conviction and sentence of life in prison for his injuries to a 74-year old patient.  It is relatively rare for medical "malpractice" cases to lead to criminal charges, but as detailed in news articles covering the trial, there was strong, adverse medical testimony about how Duntsch's improper surgical procedures caused a horrific outcome.

Initially accusing Duntsch of criminal acts arising in the context of surgical procedures to several of his patients, the prosecution ultimately focused the criminal trial on his 2012 spinal surgery on a single patient under Texas Penal Code Section 22.04, for "Injury to a Child, Elderly Individual, or Disabled Individual." The pertinent portion of the statute provides:

"(a) A person commits an offense if he intentionally, knowingly, recklessly or with criminal negligence, by act . . . causes to a . . . elderly individual . . . : (1) serious bodily injury."      

The offense becomes a first degree felony, if it is proven that the conduct was "committed intentionally or knowingly." If the conduct had been "only" reckless, the offense would be a felony of the second degree.

Under the statute, an "elderly individual" is defined as a "person 65 year of age or older." 

In a Washington Post article on the conviction, a Texas attorney is quoted:

“I cannot recall a physician being indicted for aggravated assault for acts committed during surgery,” Toby Shook, a Dallas defense attorney who spent 23 years working as a Dallas County prosecutor, told the magazine. “And not just Dallas County — I don’t recall hearing about it anywhere.”

February 21, 2017 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 20, 2017

How Do "Domestic Partnerships" Fare for Elderly Couples?

George Washington Law Professor Naomi Cahn recommended an interesting new article from the Elder Law Journal, "The Precarious Status of Domestic Partnerships for the Elderly  in a Post-Obergefell World."

Authors Heidi Brady, who is clerking for the Fifth Circuit Court of Appeals, and Professor Robin Fretwell Wilson from the University of Illinois College of Law, team to analyze key ways in which elderly couples in domestic partnerships may be treated differently, and sometimes more adversely, than same sex couples who are married.  From the abstract: 

Three states face a particularly thorny question post-Obergefell [v. Hodges, the Supreme Court's 2015 decision recognizing rights to marry]: what should be done with domestic partnerships made available to elderly same-sex and straight couples at a time when same-sex couples could not marry. This article examines why California, New Jersey, and Washington opened domestic partnerships to elderly couples. . . . This Article drills down on three specific obligations and benefits tied to marriage -- receipt of alimony, Social Security spousal benefits, and duties to support a partner who needs long-term care under the Medicaid program -- and shows that entering a domestic partnership rather than marrying does not benefit all elderly couples; rather, the value of avoiding marriage varies by wealth and benefit. 

Thank you, Naomi, for this recommendation.  

February 20, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, February 17, 2017

Sigificant Relationships: Arizona's New Guardianship Law Provides Rights of Contact for Wards

As we have discussed often on this Blog, one key issue in guardianships can be the right of access between third persons and the protected ward.  Arizona has adopted a new rule expressly permitting individuals with "significant relationships" with a ward to petition the court for access if the appointed guardian is denying contact.  A key section of the new law, adding Arizona Rev. Statutes Section 14-1536, effective as of January 1, 2017, provides:

"A person who has a significant relationship to the ward may petition the court for an order compelling the guardian to allow the person to have contact with the ward.  The petition shall describe the nature of the relationship between the person and the ward and the type and frequency of contact being requested.  The person has the burden of proving that the person has a significant relationship with the ward and that the requested contact is in the ward's best interest."

In deciding whether to grant access the court is obligated to consider the ward's physical and emotional well-being, and to consider factors such as the wishes of the ward "if the ward has sufficient mental capacity to make an intelligent choice," whether the requesting person has a criminal history or a history of domestic or elder abuse, or has abused drugs or alcohol. The new law also gives the ward the direct right to petition for contact with third persons.  

"Significant relationship" is defined in the statute as meaning "the person either is related to the ward by blood or marriage or is a close friend of the ward as established by a history of pattern and practice."

The Arizona guardianship law was also amended to mandate that guardians notify "family members" when an adult ward is hospitalized for more than 3 days or passes away.  Section 14-1537 provides notice shall be given to the ward's spouse, parents, adult siblings and adult children, as well as to "any person who has filed a demand for notice." 

I have also run into the issue of access where the care for the incapacitated person is being provided by means of family member or third person acting through a "power of attorney."  Sadly, in some states, the access issue triggers a full blown guardianship proceeding. Should a similar "significant relationship" test be used to provide a court petition-system outside of guardianships?  

February 17, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Wednesday, February 15, 2017

Summer Study in London: Prof. Kate Mewhinney's Course on Comparative Law & Aging

Our good friend, a true expert on international perspectives on elder law, Professor Kate Mewhinney, is offering her course on Comparative Law and Aging in London this summer.  Here are the details for the 3 credit course, part of a summer program that begins May 29, 2017:

This course examines how countries address what has been called the “silver tsunami” – the rapidly aging demographic.  Through a comparative and international analysis students will learn how different legal systems address similar challenges brought on by increased longevity and fewer births.  The course allows us to compare legal approaches to such issues as retirement ages, pensions and Social Security, appointment of financial surrogates, employment discrimination, filial responsibility and health care policies on long-term care and end-of-life options.  The focus will be on the U.S., U.K. and major European countries, as well as Japan, the European Union, and China.  There are no prerequisites. Students will be graded on class participation, a quiz on fundamentals, and a short research paper to be turned in within a month of the course end.

For more information on enrollment and other details of Wake Forest University School of Law's summer program in London, see the details here.   

February 15, 2017 in Current Affairs, Ethical Issues, International | Permalink | Comments (0)

Tuesday, February 14, 2017

2017 Summer Internships Available at David Berg Center for Law and Aging

I have had several law students take advantage of summer internships available through the David Berg Center for Law and Aging in New York City and they always report it was a great experience.  The window is now open for applications for summer 2017.  Here are the details:

The David Berg Center for Law and Aging is seeking select students for its Summer 2017 internship program. The David Berg Center for Law and Aging focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation.  Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale.  Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse.  Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will be exposed to legal practice in New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York State Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse.  Past issues have included questions surrounding legal capacity, guardianship, powers of attorney, Medicaid eligibility, copyright, and right to privacy.  The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters.  The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. Dormitory style affordable housing at the College of Mount Saint Vincent is available.

Interested students should send a resume, cover letter and writing sample to Deirdre Lok.  Her email address is available on the Center's website here

February 14, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Monday, February 6, 2017

The United Nations of Caregiving

Have you ever spent the night in a nursing home or dementia care center?  How about for a week?

While on my sabbatical in Arizona I had the recent opportunity to spend several nights and many daytime hours in a care center.  Quite simply, the experience deepened my respect and appreciation for the roles played by professional caregivers at all levels.  

The facility in question is a nonprofit center, licensed for assisted living, and devoted exclusively to dementia care without restraints, the very definition of "mission driven" care. Set in a five acre campus, it is what I would call a "green house model" community (or more precisely, an Arizona Model Dementia Specific Assisted Living Project), with a maximum of twelve residents per cottage. It isn't a fancy place, but it is inviting, with a circular path between the four cottages that encourages people to sit under the trees, mingle and chat. Many residents are admitted on "private pay" status, but the center is also Medicaid certified.

Three shifts per day of CNAs (certified nursing assistants), usually at least two per cottage for each shift, provide the bulk of the personal care, cleaning, and meal service for the residents.  The CNAs rotate shifts between the four cottages over the course of a single work week, sharing the workload of more challenging residents.  There is also a small staff at the administrative level, including an executive director (who is working on her PhD thesis in her rare, spare time) and two LPNs, and there is regular input from both an MD and a very experienced Nurse Practitioner (who also has a PhD).  A jack-of-all trades-building-maintenance-man, an up-beat program planner, plus two expert cooks round out the staff.  I was on a nodding acquaintance with many of these people as a result of regular visits for close to three years, but my most recent ten days of "living in" gave me profound new appreciation.

The news media, for understandable reasons perhaps, tends to focus on tragedies and bad experiences in long-term care.  Lawyers also tend to do the same, although for other reasons. At a recent legal conference, an experienced attorney who represents families in tort suits against nursing homes told me that in his experience, there are "no good nursing homes," only "less bad" ones.  

Frankly, my experience, not just recently, but over 30+ years, is that there are very good care centers available. And the quality of living can be better than in the ol' homestead. It does take time to choose the right center for a loved one, and not every place will work for every person. I suspect the differences depend on how well any center identifies and supports its chosen mission of care.  The attitude at the top affects the attitude of every employee.

To start at the executive director level, I learned this week that an awning that magically appeared one hot summer day to shade the favorite bench of one resident came from the director's own home. The attractive, sail-like canvas was adjusted "just so" between a building and a tree to provide maximum protection without making the often restless resident feel trapped.

Regular readers of the Elder Law Prof Blog may have guessed. That sun-worshiping resident was my father, a retired judge.  He liked to hold court on that bench.   

Another resident would often accompany the maintenance man on his daily rounds -- carrying a tool or pushing a cart. That probably slowed the maintenance man down.  But I never heard a complaint.  On "tough days" for that resident, when he wasn't tracking enough to safely accompany the maintenance man, that same employee would gently and kindly guide him by the shoulder back to his cottage.  

One woman, who did not speak English, liked to dance.  At the regular planned musical events, I would see even the shyest CNAs allow this woman to draw them onto the stage to join the entertainers with happy feet. My sister joined her in dancing too.  

Another resident, who became one of my favorites, sadly had aphasia, making it hard for him to find words to express himself.  Instead, he howled.  I listened mornings and nights as those hard-working CNAs would correctly interpret his happy howls -- or his sad howls -- or his "I don't want a shower" howls, without losing patience.

This staff includes people born and raised in the U.S., including several from tribal lands.  But there is always a shortage of CNAs. This particular staff also includes men and women who are immigrants from foreign lands: Mexico, several countries in Africa, the Middle East, eastern Europe, India, Indonesia, and the Philippines.  Many of the caregivers, working 40 hours or more per week, were also caring for disabled relatives in Arizona, or were sending money "home" to support other family members in need.  One caregiver, a permanent U.S. resident, is considering the tough question of whether to return to the country of birth in order to join a spouse currently detained and facing deportation for illegal entry.  Their children, born in the U.S., would become strangers in that foreign land.    

The workers at my father's assisted living center are part of a United Nations of Caregiving.

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February 6, 2017 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (2)