Friday, February 12, 2016
We've all seen it -- a family having dinner "together" while each member of the family is using a cell phone to text rather than talk. Is this likelihood to affect long-term living, and if so, how?
Stanford University's Center on Longevity has a new report on trends in three key areas usually associated with longevity -- health, financial security and social connections. The Sightlines Project: Seeing Our Way to Living Long, Living Well in 21st Century America analyzes data from studies that included more than 1.2 million Americans, and both positive and negative trends are documented.
Next will be "plans to host roundtable discussions with policymakers, private sector leaders and researchers to develop solutions to longevity problems." The goal is to better support "living long and living well." One component, therefore, is to examine the implications of "weaker social networks:"
Social engagement with individuals and communities appears weaker than 15 years ago, the research revealed. This is especially true for 55- to 64-year-olds, who exhibit notably weaker relationships with spouses, partners, family, friends and neighbors. They also are involved less in their communities than their predecessors.
"The vulnerability and disengagement in the group headed into retirement warrants further attention," Carstensen said.
The study does not address trends in the use of social media.
Amy Yotopoulos, director of the center's mind division, said, "It's too soon to tell whether asynchronous, technology-mediated forms of social engagement – texting, chat, posting and tweeting – will provide comparable social benefits to more traditional forms of interaction with family and friends."
For more on the Center's research plans, see Stanford's report on "Stanford Project Suggests Longer, Healthier Lives are Possible." My thanks to Professor Laurel Terry for sharing this article.
Tuesday, February 9, 2016
As someone who developed and led an Elder Protection Clinic staffed by law students for more than a decade, I was interested to see that the latest issue of ABA's Bifocal publication includes an article titled "Ethical Challenges of Using Law Student Interns/Externs to Expand Services to Low-Income Older Adults." The article was earlier used as presentation materials for the 2015 National Law and Aging Conference in Washington, D.C., in October of 2015.
The writers outline the potential for students and recent graduates to serve identified legal service needs and use the experience of Elder Law of Michigan,Inc. to demonstrate how one model, with a Legal Hotline, has evolved over time:
In 2013, we switched to a model that placed the law students directly on the front lines answering calls to the legal hotline. In 2014, almost 25% of the calls handled by the hotline were done by either a law student or recent college graduate. This means that without this resource, almost 1,500 seniors would not have received service in 2014.
At first glance, you would wonder why we didn’t just use more law students to help more clients. After all, if 25% of the cases is great, wouldn’t 50% of the cases be better? Not really. Here are a few of the unintended consequences that resulted from our increased use of law students.
The amount of staff time needed to train and supervise law students increases considerably. For each student who works on the legal hotline, we need a third of a full-time employee's time for supervision. There was a diminishing need for more supervision once we had three students working at the same time. So, for us to minimize the additional staff time needed, we scheduled at least three law students at the same time.
Client donations dropped. After careful research, we found that clients who called and were assisted by a law student didn’t feel the need to donate to the organization because ELM was getting free help and the service provided was part of the law school experience. So clients were less likely to donate to us if they were assisted by a law student.
More staff wanted to be involved with the law students. We found that as our law student program grew, more of our staff wanted to be involved with the program. They liked the energy that was created by this group each day. (We had 11 law students each semester, so there was always a lot of activity.) Not everyone can work with the law students every day. They have to share!
Monday, February 8, 2016
As described recently by the ABA Journal, Avvo, founded in Seattle by a self-described "tech-savvy lawyer," Mark Britton, in order "to make legal easier and help people find a lawyer," is expanding its offerings of "fixed-fee, limited-scope" legal services. The ABA Journal reports:
Avvo first got into the business of offering legal advice last year when it launched Avvo Advisor, a service that provides on-demand legal advice by phone for a fixed fee of $39 for 15 minutes. With this new service, Avvo will determine the types of services to be provided and the prices. Attorneys who sign up will be able to select which services they want to offer. When a client buys a service, Avvo sends the client’s information to the attorney. The attorney then contacts the client directly and completes the service.
Clients will be able to choose the attorney they want from a list of those within their geographic area who have registered to participate. Clients pay the full price for the service up front.
After the service is completed, Avvo sends the attorney the full legal fee, paid once a month for fees earned the prior month. As a separate transaction, the attorney pays Avvo a per-service marketing fee. This is done as a separate transaction to avoid fee-splitting, according to Avvo. Attorneys pay nothing to participate except for the per-case marketing fee.
Some practitioners undoubtedly are nervous about the effects of this format, expressing concern about quality and "price-point" effects. Others see this as an option for the known, huge number of low and modest income persons, who never communicate with attorneys, for a host of reasons including concerns about price.
Will older clients and their families, facing a range of transactions that could benefit from legal assistance, from POAs to contracts for care, use Avvo?
Friday, February 5, 2016
My friend and mentor Jeffrey Marshall, a/k/a ElderLawGuy on Twitter, once again uses practical experiences to illustrate how "planning in advance" for the possibility of emergencies makes sense, particularly as our loved ones age. He tracks the aftermath of an always dreaded "fall," an event in the life of an older person that too often can precipitate a downward spiral in the absence of a holistic care plan plan:
[M]y wife and I were thousands of miles away. How could we get her the immediate help that she needed?
Fortunately, the help was available. My wife and I had previously hired a professional care manager, Bonnie, in the town where gramma lives. As soon as we got the call from the emergency room we contacted Bonnie and filled her in. She swung into action at once. She visited gramma and evaluated her condition. She implemented a system of caregivers to stay with gramma. She set up a Monday morning appointment with gramma’s physician, attended it with her, and reported back to the family.
Bonnie served as the family’s eyes and ears and local expert and was able to ensure that gramma got the care and support she needed when she needed it.
For more details, read Jeff's blog post, "Caring for Mom when you are far away." I know that in my own family, who also lives far apart, over the course of my regular visits home I probably visited 10 different care providers with my mother or sister. This was during the year before we actually made the decision for my father. I kept saying "we can make these decisions without an emergency." It became my mantra. Not every emergency needs to be an emergency....
Thursday, February 4, 2016
My colleague Laurel Terry sent a link to this week's New York Times article that delves into the topic of "healthy aging." Thank you! While I can see "healthy aging"as a goal, I have to admit I had not thought carefully about what we mean with those words. Jane Brody's article, Finding a Drug for Healthy Aging, helps to explain, while also examining the latest push for medications that might serve the goal:
In 1980, Dr. James F. Fries, a Stanford University physician who studied chronic disease and aging, proposed that a “compression of morbidity” would enable most people to remain healthy until a certain age, perhaps 85, then die naturally or after only a brief illness.
Now, a group of experts on aging envisions a route to realizing Dr. Fries’s proposal: one or more drugs that can slow the rate of aging and the development of the costly, debilitating chronic ailments that typically accompany it. If successful, not only would their approach make healthy longevity a reality for many more people, but it could also save money. They say that even a 20 percent cut in how fast people age could save more than $7 trillion over the next half-century in the United States alone.
“Aging is by far the best predictor of whether people will develop a chronic disease like atherosclerotic heart disease, stroke, cancer, dementia or osteoarthritis,” Dr. James L. Kirkland, director of the Kogod Center on Aging at the Mayo Clinic, said in an interview. “Aging way outstrips all other risk factors.”
The practitioners of this field of study even have a name, geroscientists, "university scientists joined together by the American Federation of Aging Research to promote a new approach to healthier aging...."
Tuesday, February 2, 2016
Prolific scholar Richard Kaplan, from Illinois Law, has a new article with a clever title. Here's a taste from the abstract for “What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans:”
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
This very practical article appears in NYU's Review of Employee Benefits and Executive Compensation, Chapter 4, for 2015.
Challenge to Attorney General's "Outsourcing" of Consumer Protection Suits Against Nursing Homes Fails in PA
In GGNSC v. Kane, decided January 11, 2016, the Pennsylvania Commonwealth Court rejected a challenge by owners and operators of long-term care facilities to the use of a private law firm to investigate and pursue claims based on alleged improper billing, contracting and marketing practices. The ruling was 6 to 1, with the lone dissenting judge not filing an opinion.
In the challenge, begun as a declaratory judgment action, the Facilities contended the investigations were "not based on any material consumer complaints," but were instead based on efforts by the law firm (Cohen Milstein) to generate lawsuits in Pennsylvania and other states. In Pennsylvania, beginning in 2012, the Pennsylvania Office of Attorney General signed a contingent fee agreements with the Cohen Milstein law firm, which has a history of pursuing class action suits in business and consumer protection areas. The Court permitted the Pennsylvania Health Care Association, a trade group for some 450 long-term care providers in the state, to join the Facilities' challenge as a petitioner.
In July 2015, the Facilities' challenge was "overtaken" by a Consumer Protection Law enforcement lawsuit filed by the Pennsylvania AG against two GGNSC facilities and 12 Golden Living nursing homes. Cohen Milstein was listed as counsel representing the State. Some of the Facilities' original arguments for blocking the Cohen Milstein investigatory actions became moot after the consumer protection suit was filed or could be addressed in the enforcement suit, according to the Commonwealth Court decision. (Other states have also contracted with Cohen Milstein to bring nursing home cases, including New Mexico.)
However, the Facilities continued to argue that only the Pennsylvania Department of Health (DOH) had "authority" to investigate or pursue litigation regarding quality of care. The Commonwealth Court disagreed:
Any investigation or enforcement action initiated by OAG is directly related to "unfair or deceptive acts or practices" purportedly committed by the Facilities with respect to the staffing levels at their facilities. As a result, while minimum staffing levels may be regulated by DOH for health and safety purposes, any representations, advertisements or agreements that the Facilities made with their residents with respect to staffing levels, whether in accord with those required by statute or regulation or not, may properly be enforced by OAG through its authority conferred by the Administrative Code and the Consumer Protection Law. Such action is proper under the foregoing statutes and does not constitute any impermissible administrative rulemaking regardless of whatever evidence OAG uses to establish a violation, including any type of staffing model. What OAG is seeking to enforce is the level of staffing that the Facilities either represented, advertised, or promised to provide to their residents and not what level OAG deems to be appropriate for the care of such residents.
Further, the Commonwealth Court ruled the Facilities "lacked standing" to challenge the OAG's use of a private law firm to investigate or prosecute the claims under the Administrative Code or the Consumer Protection Law, citing the Pennsylvania Supreme Court's similar ruling in Commonwealth v. Janssen Pharmaceutica, Inc. in 2010, a suit about alleged off-label drug prescriptions, pursued with the assistance of contracted outside counsel.
The outsourcing of state claims for consumer protection suits raises interesting issues. Such financial arrangements with outside law firms may be especially attractive to states in terms of risk/reward potentials, as the private firms typically agree to fund all or a portion of litigation costs for the class-action-like suits, with lower contingent fee percentages (10 to 20%) than you would see when such a firm handles suits on behalf of private plaintiffs. The option could be attractive to financially-strapped states or "embattled" state prosecutors such as the Pennsylvania AG.
Companies, particularly health care companies, have organized efforts to resist what they see as "abusive" lawsuits generated by private law firms. As one industry-focused report argues here, private firms lack a proper "public" perspective, failing to take into account the impact on business development, while also arm-twisting companies to extract settlements, arguing this comes at a high-dollar cost to the state's residents.
Monday, February 1, 2016
Over the last 20 years, I've definitely noticed a change when, during a meeting with a new person, I'm asked "what do you teach?" For many years, I would get a blank stare or, perhaps, "what exactly is elder law?" Now, more frequently the response is "do you have time for a quick question?" (Unfortunately, quick questions rarely have quick answers, even when I begin "Let me suggest you see an experienced attorney in your area....")
I'm hearing more questions about home care workers. One frequent question is about overtime pay, and the type of employment definitely matters. The U.S. Department of Labor (DOL) website has helpful materials, and the site reports on the effect of recent litigation affecting home care workers.
Recently someone asked me if it was "safe" to assume they don't have to keep track of "overtime" hours, because the individual they have hired has irregular, mutually adjustable hours and is permitted to sleep when they stay overnight. Family members will tell me "we just want someone there in case something happens." That scenario is definitely affected by whether or not the employee's duties are correctly described as "companionship" services. There is a limited exemption from minimum wage and overtime pay requirement for "companionship" employees.
In late 2014, the DOL issued a detailed "Home Care Final Rule" that became effective only after litigation in the federal Court of Appeals rejected a challenge by third-party employers (home care agencies) to implementation. See Home Care Association of America v. Weil. Thus, as of January 1, 2016, the Department of Labor takes the position the Home Care Final Rule is now fully enforceable.
As the DOL explains, its Final Rule defines "companionship services" as the provision of "fellowship and protection." "Companionship services" may also include the provision of care if the care is attendant to and in conjunction with fellowship and protection services, so long as the "care" does not exceed 20 percent of the total hours worked per person and per workweek. Driving "usually" constitutes assistance with instrumental activities of daily living (IADLs) and if the employee is working for less than 24 hours per shift, any permitted sleep time must still be compensated. (State rules may also have tighter rules affecting payments.)
DOL provides this example:
Sue, a direct care worker employed solely by Ms. Jones, regularly works 35 hours per week in Ms. Jones' home. Sue primarily provides fellowship and protection to Ms. Jones. If she also spends no more than 7 hours per week (20% of her work time for Ms. Jones) providing assistance to Ms. Jones with ADLs and IADLs, she is providing care within the scope of the definition of companionship services, and Ms. Jones is not required to pay her minimum wage and overtime compensation.
For more, see FAQs about Home Care on the DOL website -- or, better yet, talk to an experienced attorney in your city!
Friday, January 29, 2016
Following up on my post last week about the surge of interest in filial responsibility laws in South Korea, including the alternative concept, "filial duty contracts," recently I was interviewed as part of a English-language radio news broadcast in South Korea. The host asked for a comparative, international perspective. I thought the host's reaction to hearing about U.S. cases was interesting -- suggesting that lawyers (or perhaps law professors) aren't sufficiently tuned into the family emotions involved in the topic! Here's the podcast (about 10 minutes) from the live radio program.
Thursday, January 28, 2016
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, January 25, 2016
I think I might like winter better, if it always happened "conveniently" and with plenty of notice, as did Saturday's snow in Pennsylvania. For once, I was prepared to be at home, with a stack of good reading materials for catching up when the joys of house-cleaning and snow shoveling faded.
I am intrigued by the Fall 2015 issue of the NAELA Journal that focuses on how advances in genetic testing and medicine may be reflected in the roles of lawyers who specialize in elder and special needs counseling. A leading article in the issue introduces the three primary uses of modern genetic testing -- for diagnosis of disease, for determination of carrier status, and for predictive testing -- while reminding us there are limits to each function. In looking at age-related issues, the authors note:
Genetic testing is beginning to reveal information regarding susceptibilities to the diseases associated with old age: Alzheimer’s disease, Parkinson’s disease, diabetes, and cancer. Genetic test results showing a higher risk of such diseases can result in a cascade of consequences. Francis Collins, mentioned at the beginning of this article, responded to his test results thoughtfully by making lifestyle changes to reduce the probability that the increased genetic risk would be expressed in actual disease. It is important to note that, for some conditions, lifestyle factors’ influence on disease risk is understood; however, for many of the conditions that affect seniors, this influence is not yet known.
Other reactions to a high-risk test result may be more aggressive than diet and exercise changes. A well-publicized example is Angelina Jolie’s bilateral mastectomy. She was cancer-free but learned that she carries a BRCA1 mutation, which increases her lifetime risk for breast and ovarian cancer. She chose to undergo prophylactic mastectomy to reduce her breast cancer risk, whereas other women choose to increase breast cancer surveillance, such as undergoing more mammograms and breast MRIs. Both options are available to women who carry a BRCA1/2 mutation.
Will those found to be at elevated risk for more complex conditions such as Alzheimer’s disease or Parkinson’s disease make premature life choices, such as early retirement or marriage, based on perceived risk? Earlier in this article it is explained that an individual’s genotype rarely determines his or her medical destiny. For example, many people with a higher genetic risk for Alzheimer’s disease will not actually develop it, while many with no apparent higher genetic risk will. Is the risk that members of the general public will misunderstand and overreact to the results of a genetic test sufficient reason to prevent them from obtaining the information gleaned from such a test? Should we be ensuring that those undergoing genetic testing are aware of its benefits and limitations through individualized genetic counseling? This, of course, presents its own challenges of access and availability.
In reading this, it seems likely that lawyers may encounter complicated issues of confidentiality, especially when counseling "partnered" clients, while also increasing the significance of long-range financial planning and assets management.
For more, read Genetic Testing and Counseling Primer for Elder Law and Special Needs Planning Attorneys, by CELA Gregory Wilcox and Rachel Koff, Licensed Certified Genetic Counselor.
January 25, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Estates and Trusts, Ethical Issues, Retirement, Science | Permalink | Comments (0)
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 13, 2016
My Blogging colleague Becky Morgan suggested that our faculty readers share hot topics or videos they are using in Elder Law courses. Along that line, I'm using an excerpt from a Dateline NBC program (archived in part by NBC, although special arrangements appear to be required for copies) from several years ago, that provides a dramatic introduction to a number of age-related legal issues.
The program tells the story of Dr. Gerald Klooster and his family. In 1995, friends of the family became concerned when they learned that Dr. Klooster, once a practicing obstetrician in California who was forced to retire early from his practice as the result of a diagnosis of Alzheimer's, had an appointment with his wife to meet with Dr. Kevorkian, of "assisted suicide" fame. One son, also a physician, became so concerned that he made the decision to whisk away his father to the son's own state of Michigan, for safeguarding. That triggered a two-state custody battle, initially resulting in inconsistent court rulings. Eventually, however, Dr. Klooster was returned to California where he resumed living with his wife, Ruth, and regularly saw his other children and grandchildren. The NBC program shows Gerald swimming and interacting with his family members.
One night, however, emergency personnel were summoned to the Klooster home, when it was learned that Gerald had ingested as many as 60 sleeping pills and alcohol in the middle of the night. Ruth is the one who called the emergency personnel, but then also reportedly directed them not to provide certain life-saving treatments. She was relying on her husband's pre-dementia living will.
Gerald Klooster did survive, and the NBC program provides fascinating interviews with family members, and shows the couple sitting hand-in-hand. Did he knowingly attempt to take his own life? Did he do so because he was a physician and, as his wife put it, "didn't want to live the disease through?" Or did Alzheimer's prevent him from having the capacity to make any such decision? The saga was also detailed in a New York Times article, linked here.
Lots of food for discussion with this story. It introduces the limitations of advance directives or living wills; it encourages discussion about Alzheimer's as a "real" phenomenon; it provides a stage for discussing powers of attorney, guardianships and family caregiver roles, just to name a few topics still "hot" today. Plus, it offers historical perspective on recent changes in laws, including uniform laws on jurisdiction for protective proceedings for adults, and assisted-suicide laws, including the California law that became effective on January 1 of this year.
The Klooster Saga lasts several years beyond the NBC Dateline story itself, as Dr. Klooster did live with his wife in California for additional years, before spending his last 18 months in a nursing center. According to this San Francisco news report, he passed away at the age of 72 of natural causes, but, sadly, the break in the relationship between his physician-son and the rest of the family had not healed.
January 13, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)
Friday, January 8, 2016
I've been intrigued by Hillary Clinton's December 2015 campaign announcement of a plan to focus on prevention, treatment and a cure for Alzheimer's disease if elected President. Certainly there is plenty of data to document the need for such a plan. Her announcement seems to be attracting attention -- support? -- as demonstrated in this piece from Lois Bowers, Senior Editor at McKnight's Senior Living, an industry-focused publication.
Thursday, December 31, 2015
The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions:
Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....
To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.
The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.
In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary. Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:
Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.
The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.
Certainly I understand industry hostility to more regulations. At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting. A "carrot" rather than a "stick" to encourage reporting.
Our thanks to University of Illinois Professor Dick Kaplan for sharing this article.
Monday, December 28, 2015
Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:
- Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients. Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
- New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.
The New Jersey court, writing unanimously, observed:
The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.
In a News-Press article about the Florida disbarment, Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations.
Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged.
Thursday, December 17, 2015
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Tuesday, December 15, 2015
The Senate Special Committee on Aging is taking up the important issue of drug pricing:
A Senate investigation of drug-price spikes at four companies kicked off Wednesday with specialists from all corners of the health-care system testifying that they're powerless to manage the out-of-control prescription costs.
The hearing launches the Special Committee on Aging's investigation into the soaring prices of old drugs, including the recent overnight price hike of Daraprim from $18 to $750. Doctors and policy experts offered a slew of proposed policy solutions, such as expediting applications for generic drugs to increase competition and requiring companies to reveal how much drugs really cost.
But the testimony to the committee in advance of the hearing underlined a stark fact about the current system, too: Doctors, companies that manage prescription drug benefits, hospitals, and health care policy experts alike feel fairly powerless to control high drug prices -- because they are allowed.
For instance, a pediatrician from the University of Alabama at Birmingham testified that an infant needed a treatment that had increased from $54 a month to $3,000 a month, causing the pharmacist to scramble for a solution. A kidney transplant patient in Baltimore began experiencing hallucinations as her medical team tried to obtain a drug once easily available.
For more coverage, read the Washington Post's article, Doctors, Hospitals Condemn Out-of-control Drug Prices as Senate Investigation Begins.
Monday, December 14, 2015
I have often been struck by how frequently attorneys I know began working in elder law after their personal struggles to find resources to help an aging member of their own family. A slightly different family-inspired path is behind the story of attorney Joy Solomon. She at first resisted.
In the midst of my raging adolescence in 1979, my mother was devoting most of her time to a Jewish nursing home in Baltimore where she was the board president.
I would come home after school, make instant mashed potatoes, settle into the comfort of our gray velour sofa and watch “General Hospital,” enraptured. Family dinner often included stories about Mom’s afternoon with the old people. In her mind, the elderly were to be revered as the bearers of history, lives lived and lessons learned; in my self-centered, adolescent thinking, old people were fragile, needy and dying. I felt more connected to soap stars like Luke and Laura than to aged Jewish grandmothers. I told myself that I’d never end up working in a nursing home like her. No way....
To continue reading how Joy found her mission and is now a part of the team at the Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home in Riverdale, the Bronx, read Coming Full Circle to Help Her Elders, from the New York Times.
Special thanks to Karen Miller, a former administrative law judge from New York, for sharing this story.
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)