Monday, December 2, 2013
At the heart of comparative research is the opportunity to rethink your own system. I was reminded of this point last week when meeting Claire Keatinge, the Commissioner for Older People in Northern Ireland (COPNI). Commissioner Keatinge is -- in a word -- dynamic, and it is impossible not to be impressed with her dedication to meeting the needs of older persons in her country. She is a leader, both actually and symbolically, for a hard-working team tackling a number of issues in ageing policy.
It is clear to me that "independence" is at the core of the role for the COPNI. What do I mean by independence? The COPNI is funded with public dollars, but the job includes making an independent evaluation of the needs and interests of the demographic, and then reporting and advocating for appropriate response by the government or other sectors. By comparison, I wonder whether state officers or offices charged with policy and laws in the U.S.are more likely to be serving a governmental agenda, and trying to sell that agenda to voters. This strikes me as a potentially important, if subtle, difference in systems.
A small example of the importance of independence: One of the COPNI's several goals is to identify and improve "uptake" of benefits available to older persons in the country. In Northern Ireland, and elsewhere in the U.K., there are official statistics on the dollars (whoops, I mean pounds) left on the table by individuals who fail to seek available public benefits or services. In N.I., there is a known gap. By comparison, I would be surprised to learn that we keep similar statistics on either the state or federal level in the U.S., much less have a policy of trying to reduce any gap.
Claire Keatinge also stressed that an individual assessment of need for health care, social care and security, should be exactly that, and not simply an assessment of what services are available. Helping individuals or their family members access services in the public, private and voluntary sectors is part of the COPNI plan of action, but, it strikes me that the emphasis on evidence-based policies may result in development of new services or better funding for existing programs.
Wednesday, November 27, 2013
Thursday, November 21, 2013
I sometimes try to hold a provocative or interesting case until the last session of an Elder Class. This semester I asked the students to read:
- John Payne's recent article on "Ethical and Public Policy Considerations Related to Medicaid Planning," and
- Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2012)
The combo seemed to work well, giving students a chance to revisit a number of issues from the semester. For, example, we talked about the role of an attorney in advising family members. In the Irving case, did either the daughter or the son have legal advice (the same lawyer?) regarding the roles they took when their mother was admitted to the nursing home? If anyone would like my outline of questions for students on these two documents, feel free to email me.
And if any of you have a great way to end the semester in either Elder Law or Wills, Trusts & Estates, please share!
Tuesday, November 19, 2013
This semester in Penn State's Elder Law class, I encouraged students to write one of their two required short papers on some aspect of the "future of elder law," in the largest sense of that phrase. Several students examined technology and aging, including use of video technology to monitor care or provide tracking of medication or movement. One student's paper is about due process implications of monitoring for staff and family members.
The future is now, of course, in the world of video technology, especially in a CCTV world of almost constant surveillance. The New York Times reports another dramatic example of abuse as caught on "granny cams" used in a nursing home. In "Watchful Eye in Nursing Homes," writer Jan Hoffman details examples of abuse bordering on torture caught on video at an Oklahoma nursing home.
The article points to the trend in state legislation or regulations expressly authorizing video monitoring, laws that attempt to strike a balance between potential rights of privacy and safety:
"On Nov. 1, propelled by the outcry over the Mayberry case, Oklahoma became the third state — along with New Mexico and Texas — to explicitly permit residents in long-term care facilities to maintain surveillance cameras in their rooms. In the last two years, at least five states have considered similar legislation. Although some states have administrative guidelines for electronic monitoring, most legislative efforts have stalled because of questions about liability and, in particular, privacy rights, raised by facility owners, unions, elder care lawyers and families."
Our friend and colleague, Nina Kohn, elder law professor extraordinaire at Syracuse Law, is quoted in the article on the need for caution in implementing surveillance.
Sunday, November 17, 2013
I expect this topic will generate considerable discussion.
John B. Payne, long-time practitioner in Michigan and Pennsylvania, addresses a fundamental issue for those working in the law and aging policy arena: whether so-called "Medicaid Planning" is somehow wrong. In doing so, he considers several important perspectives. John starts by identifying six different "constituencies" who are "involved in or affected by planning steps," including legislators, public welfare administrators, nursing home operators, lawyers, judges, and commentators. The article, "Ethical and Public Policy Considerations Related to Medicaid Planning," is the lead in the October 2013 issue of the Pennsylvania Bar Quarterly. The abstract provides:
"This paper discusses moral, ethical, and public-policy issues regarding Medicaid planning -- transferring or converting assets of a long-term care consumer to create Medicaid eligibility. The author argues that it is not unethical to qualify a nursing-home resident for Medicaid by means of asset transfers where the resident will receive the same service under Medicaid as he or she would receive as a private-pay patient. The author further contends that an applicant's lawyer would have an ethical and moral obligation to the client and the client’s family to maximize Medicaid payments for nursing care where it is clear that the client would want Medicaid to cover the cost of care. Finally, the author urges that the state’s or commonwealth’s fiscal concerns should not be given priority by a court above a Medicaid candidate’s legitimate desire to preserve his or her wealth in the face of ruinously expensive nursing home costs."
Sunday, November 3, 2013
One of the nice things I've learned as a result of joining this blog in August, is that it provides a place to "file" and "index" the various bits of information that come across one's desk. I know, I know. I still need to discard those piles of paper accumulating in my office. What can I say? I seem to suffer from PSAD, or paper separation anxiety disorder.
Anyway, I've been thinking a bit lately about the question of risk factors in home care, whether that care is provided by family or outside professionals, or, often, a combination of the two.
A recent newsletter from Nursing and Assisted Living Facility Professionals offers a thoughtful list of risk factors for facility-based care. Written by Memphis attorney, Rebecca Alderman, the list is influenced by the Affordable Care Act's mandates for training to prevent abuse and improve care of persons with dementia. Alderman identifies several "Facility Risk Factors," including "staff stresses and burnout," "staff ratio and turnover," "culture and management," and "physical environments." She emphasizes the importance of creating a "partnership of stakeholders" to manage these risks.
That is tough enough to do in facility-based care. But what about in the home? Aren't the same risks present for home care, and perhaps even more intensely felt? Is it safe to ignore caregiver risk factors in the home? Thus, a stakeholder team is probably even more essential.
Who would you include as essential members of stakeholder teams for home-care?
Monday, October 28, 2013
- Competency, 11/14/2013, 2-3p EasternTime Register Now for Webinar 1
- Confidentiality, 12/12/2013, 2-3p EasternTime Register for Webinar 2
- Multi-representation, 1/16/2014, 2-3p EasternTime Register for Webinar 3
Friday, October 25, 2013
Earlier this week, I posted an update about state law reform movements regarding Powers of Attorney, including the Uniform Power of Attorney Act of 2006 (UPOAA), which so far has been adopted in 13 states and is currently under consideration in Pennsylvania and Mississippi.
I've been getting very interesting responses, and I'll try to capture some here in the blog as I have time. To start things rolling, I'll share some thoughtful comments from Robert Slutsky, a Pennsylvania attorney who focuses his practice on elder law, estate planning and administration, guardianships and real estate . He's also a '92 grad of the Dickinson School of Law, so he's been doing this awhile. He gave me permission to excerpt his emails.
In writing to me, Robert said he was adopting the role of devil's advocate. Certainly turn-around is fair play for graduates with law professors! Based on his experiences, he worries about law reform efforts that could make POAs less useful to the majority of people who use them properly. Restrictions could be penalizing the wrong people. As he puts it succinctly, "Occasional problems with POAs result from evil people who know what is right and wrong and choose to do wrong.... Trying to solve a problem caused by bad people by restricting those who use POAS properly is ineffective and counterproductive."
Robert also serves as the solicitor for a county adult protective services unit, and he does see instances of financial exploitation, although he says he sees more cases of caregiver neglect or self neglect. That observation is consistent with annual reports in Pennsylvania and elsewhere. Unfortunately, data on abuse is not regularly collected or evaluated on a national level, as discussed in the July 2013 GAO Report to Congress on "Elder Justice: More Federal Coordination and Public Awareness Needed."
Robert Slutsky says that even when he sees financial abuse, it "rarely" involves POAs as the tool to victimize older persons. He also warns that while a prosecutor may view a case of a child using a elderly parent's money as "abusive," a full history may show a long pattern of parental approval or tacit permission, and thus with families it can often be a "gray area" regarding permitted use.
Thank you, Robert.
Readers, feel free to add your comments, either to the original post or below.
Wednesday, October 23, 2013
Following last week's USA Today article exposing thefts by nursing home employees from resident trust accounts, Senator Bill Nelson, chair of the U.S. Senate Special Committee on Aging, has called upon the Inspector General to investigate management and oversight practices and to reommend corrective action by the Centers for Medicare and Medicaid (CMS). CMS has oversight authority over nursing homes.
In a letter dated October 21, Senator Nelson targets the absence of standard protocals for safeguarding such accounts:
"Widespread negligent oversight allowed some of these theft and embezzlements schemes to go on undetected for years, and in some instances the losses totaled more than $100,000. Several of these trust fund culprits were caught merely by accident or due to the suspicions of a co-worker, and not by systematic financial auditing or tight management controls."
If, as the saying goes, no good deed goes unpunished, no bad deed by a nursing home goes uninvestigated by Congress. Stay tuned, but don't hold your breath.
Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.
Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals. For a number of years, states have been struggling to balance utility against risk.
In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts. Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute. Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties. The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.
Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends.
Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA), which superseded prior uniform law proposals. The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:
"The UPOAA seeks to preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool for financial abuse of incapacitated individuals. It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."
Adoption of the UPOAA has been fairly slow. As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA.
In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption. In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.
Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice Debra Todd of the Pennsylvania Supreme Court.
In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties.
The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons."
By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney." Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals. I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse. Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent. Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.
October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Sunday, October 20, 2013
Following up on her story of filal support in China, AP Writer Kristen Gelineau's new article on elder abuse identifies several factors that can lead to tragedy: an elder's frailty, a family's inability to provide appropriate care (whether because of emotional unsuitability or financial pressures, or both), and isolation. The latest account comes from Kristen's own country, Australia, "a developed, wealthy nation considered progressive in its treatment of seniors."
Eighty-eight year old Cynthia lived with a daughter, Marguerite, who received a caregiver's benefit of about $500 every two weeks. That money was her mother's one last tie to the outside world, but it wasn't enough.
"Once the payments started, the government welfare agency, Centrelink, never asked for further medical updates on Cynthia, Marguerite said.
Cynthia also vanished from the health care system. Medicare records show that until 2003, she regularly saw doctors and took prescription medications; Marguerite said the doctors' visits were covered by government health care. But after 2003, Cynthia never saw another doctor, never filled another prescription.
She simply slipped through the cracks, showing how the protection of social networks can evaporate with age. A doctor or teacher may notice the bruises on a child. But almost nobody sees the bruises on a secluded older person — and those who do may chalk them up to aging.
Marguerite's explanation, years later, for why she stopped taking her mother to the doctor: 'Well, she didn't say she was ill...She seemed happy.'"
As Kristen's reporting makes clear, what happens to Cynthia could happen in any country that turns its eyes away from the potential for suffering by isolated elders. Make yourself read "Neglected Old Australian Woman Suffers Brutal Fate."
Thursday, October 17, 2013
I have to admit that I pass over a fair number of opportunities to write in this Blog about problems in nursing homes. Experience tells me that nursing homes are on the front lines of the care battle, are heavily regulated (for good reasons), and are trying to do a tough job with ever decreasing resources. There are problems, but the problems also exist with other forms of facility-based care that don't receive the same attention by regulators and the media.
But today's USA Today's article on "Thefts From Nursing Home Trust Funds Target the Elderly," addresses a form of abuse that is particularly troublesome, in part because it should be darn easy to prevent with proper accounting safeguards for client funds. Here's the opening to the story:
"The administrator at the Vicksburg Convalescent Center knew something was wrong when she saw the receipt: a $90 debit from a resident's trust fund account for a pair of designer jeans.
Of all the elderly residents at the 100-bed nursing home, Amy Brown figured, this one was especially unlikely to spend his savings on pricey pants.
Both of his legs had been amputated."
As Kim Dayton reminds us in her separate post, "October is Residents' Rights Month." Of course, abuse is wrong on any day of the year.
Monday, October 14, 2013
When I first began writing about modern enforcement of filial support laws, I was examining what I would now call a "little" Pennsylvania case, Savoy v. Savoy, 641 A.2d 596 (Pa. Super. 1994) where a mother was asking for financial support from her adult son because she was unable to work after a hospital stay. Citing Pennsylvania's filial support law, requiring children "to care for, maintain, or financially assist" an indigent parent, the court ordered the son to pay $125 per month, but the court did not order him to pay her; rather, the court ordered the son to pay his mother's health care providers. The relief granted in that case was probably of little practical value to the plaintiff. Most likely, the mother could have discharged those bills in a no-asset bankruptcy. What she really needed was help in the future. She needed help with daily expenses because she was unable to work and was sliding into poverty. I learned that even a few years after the court case was over, the family relations were still pretty much destroyed. Money had been paid, but that was about all.
I was worried about the implications of the Savoy decision for future cases involving reluctant adult children. What if the reluctant child chose to provide direct care to the ailing parent only because the law imposes such a duty, or because the child is avoiding a court order requiring him or her to pay real dollars for future support? It is great when family members voluntarily provide care, and it is often heroic when they do so even at huge emotional and fiscal cost to themselves. But, doesn't court-ordered "filial support," imposed upon a reluctant family member, pose a real danger to the elder, especially a frail elder?
So, let's look to China. Earlier this year, some were talking about news of China's decision to enforce its filial support laws, and there was speculation that such enforcement could be a better alternative to the rising cost of publically supported long-term care, such as the costs of Medicaid in the U.S.
This is where journalist Kristen Gelineau's latest work is important. Kristen is in Australia, where she writes for The Associated Press. Several months ago she contacted me, asking about Pennsylvania's law, as well as the law of other states and countries. We talked about China. It turns out Kristen went to China to track down exactly what happened in a key case of enforcement, where a Chinese elder was granted relief under China's version of a filial support law. Kristen travelled to a village with a photographer and translators (used to translate the local Chinese dialect to Mandarin, then Mandarin to English).
Kristen's story, In Aging China, Older Woman Sues Children for Care, is powerful and it deserves careful attention. She tracks the misery associated with desperate financial conditions for an entire family, and how such misery can be intensified when "by the book" enforcement of filial support laws takes place. As Kristen told me over the weekend, everyone in Zhang's story is struggling to get by and "no one is happier now than they were before they want to court."
Kristen's story is a vivid reminder that there are reasons why Elizabethan-era Poor Laws were replaced with social insurance and public welfare programs, a reminder that is even more relevant to our aging planet in the 21st Century.
And there is more to come from Kristen Gelineau. Her next piece, to be released later this month, looks at elder neglect in Australia and the wider problem of elder abuse globally.
Thursday, October 10, 2013
Ann Brenoff, a senior writer at The Huffington Post, often writes on care-giving, family responsibilities and aging. She offers a provocative piece today, explaining why she -- and I suspect many others -- are tired of being the only responsible "adult in the family."
Anne manages to work in my research on filial support laws from the Ukraine. See what you think... and feel free to comment on the Huff Post website. Here's the link: On The Fly: Are You the Adult In Your Family?
Wednesday, October 2, 2013
Designing Laws re Protection of Older Persons from Abuse (and writing on a "clean slate" in 2013): What Would You Include?
Recently I have the privilege of joining an international, interdisciplinary team of academics and practitioners working on new legislation for protection of adults, especially older adults, from abuse, neglect and financial exploitation. I hope to report more about our work in the future.
At our first meeting, I was interested to hear the commonality of themes between the U.S. and other countries involved in the research. Aside from the basics, which include definition of terms and scope of duties to report, two themes struck me as persistent and tough, despite each country's efforts to tackle the problems:
- First, whether initial reports of suspected abuse should go to a "civil" investigatory agency, or also to traditional law enforcement (police, garda, gendarmes, sheriffs, etc.).
- Second, the challenges of determining capacity of the possible victim to consent to the investigation (or to accept, for lack of a better word, the consequences of suspected abuse).
Perhaps you have individual concerns about the effectiveness (or ineffectiveness?) of adult protective service laws in your jurisdiction.
We'd love to receive your comments.
Friday, September 27, 2013
For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders." Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence? Close calls on most of the cases.
The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate. However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."
Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity."
Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function? Perhaps every seasoned lawyer has a series of tried and true questions or techniques. But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.
Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:
- Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
- Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
- Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges
The good news is that all three documents are available on the internet. The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience. The handbooks have been available since 2006. Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks.
Any opinions about the usefulness of these handbooks to practitioners?
Sunday, September 15, 2013
New York City, Two Wills, 100+ Year-Old Testator, $300 Million Estate: Can You Guess Where This is Going?
Bingo. Although this time the court case (cases?) is not about Brooke Astor. This time the tragic subject is another heiress, the reclusive Huguette Clark. The will contest case is scheduled to start jury selection on September 17.
Thanks to Professor Ann Murphy, Gonzaga School of Law, for pointing us to the September 15 New York Times article by Anemona Hartocollis, "The Two Wills of the Heiress Huguette Clark."
Thursday, September 12, 2013
In Pennsylvania, as I blogged last month, we're following the high-profile prosecution of a daughter for allegedly assisting in the suicide of her 93-year-old father, who was on hospice when he reportedly ingested a fatal dose of morphine.
For an alternative perspective on end-of-life decisions, Knocking on Heaven's Door: The Path to a Better Way of Death has just been released by publisher Scribner. Katy Butler, the author, expands on an earlier article she wrote for New York Times Magazine, recounting her education about medicine, death and her journey with her father following a major stroke, his heartbeat preserved by a relenteless pacemaker, even as his mind and will-to-live were devastated by dementia.
Her book is already receiving high profile accolades, including "Letting Go," Stanford Professor Abraham Verghesse's thoughtful essay in the New York Times.
Hat tip to Penn State Law Professor Laurel Terry for spotting the Verghesse book review.
We're confronting major social issues in the USA, including movement toward national recognition of same-sex marriages. Is it possible we are also ready to expand consideration of legal recognition of rights for very ill persons to choose their own death?
Tuesday, September 10, 2013
From a search on SSRN for recent academic articles using the words "Medicaid Planning":
Sean Bleck, Barbara Isenhour & John A. Miller (University of Idaho), "Preserving Wealth and Inheritance Through Medicaid Planning for Long-Term Care," (last revised 3/8/2013)
Gerry W. Beyer (Texas Tech) & Kerri G. Nipp, "Updated Primer on Lady Bird Deeds," (3/1/2012)
Diane Lourdes Dick (Seattle University School of Law), "Tax and Economic Policy Responses to the Medicaid Long-Term Care Financing Crisis: A Behavioral Economics Approach," (11/21/2010)
David Bernstein (U.S. Treasury Department), "A Discussion of Medicaid Eligibility Rules and Potential Reforms," (11/26/2008)
Richard K. Kaplan (University of Illinois), "Retirement Planning's Greatest Gap: Funding Long-Term Care," (6/22/2007)
Marshall B. Kapp (Florida State University), "Medicaid Planning, Estate Recovery, and Alternatives for Long-Term Care Financing: Identifying the Ethical Issues," (12/22/2006)
Certainly many big names, but a bit surprising not to find a larger number of recent articles?
Friday, August 30, 2013
Missouri Circuit Court Judge Karl A.W. DeMarce offers thoughtful comments from the bench on potential conflicts of interest for family members, especially spouses, in handling responsibilities as court-appointed conservators or guardians. Judge DeMarce stresses the lawyer's role in advising conservators on appropriate financial transactions, including transfers of assets:
"No conservator-spouse should have to face unnecessary legal complications and burdens – in addition to the family tragedy of having to care for a loved one no longer capable of managing his own affairs – because her attorney failed to advise her of the legal obligations and potential conflicts of interest involved. No attorney wants to learn that a client’s world has been unnecessarily turned upside down because of his or her failure to provide timely and complete legal advice. In the potential legal minefield of spousal conservatorship, the value of frank, timely, and comprehensive legal advice cannot be overestimated."
Further, the judge points to the lawyer's role in explaining the validity of transactions to the court:
"Counsel can play a valuable role not only in advising the conservator-spouse, but also in explaining to the probate division why certain types of expenses beneficial to the conservator-spouse, which would ordinarily be seen as being in violation of fiduciary duties, may be in the protectee’s best interests due to MO HealthNet program requirements."
Read the full article, "The World Turned Upside Down: Challenges Facing the Conservator-Spouse," published in the August 2013 issue of the Journal of the Missouri Bar.