Tuesday, December 16, 2014

Did You Catch NPR's "Old and Overmedicated?" (Links and Updates Here)

Mark Friedman, an elder law and special needs attorney from New Jersey, recently wrote to comment on the important series offered by National Public Radio on use and misuse of certain medications in long-term care settings.  Here is what Mark said:

"NPR ran a story on 'chemical restraints,' - nursing homes using anti-psychotic drugs to make unruly residents more pliable. According to the article, the residents are usually Alzheimer’s or dementia patients, and anti-psychotics can make the residents easier for staff to manage. But the drugs can be dangerous, increasing a resident’s risk of falls and exacerbating health problems. At high doses, anti-psychotics can also sap away emotions and personality and put the resident into a 'stupor.'

 

Administering drugs in this manner, any drugs, including anti-psychotics, without medical need and for the convenience of staff, is contrary to federal regulations. Unfortunately, it may also be widespread.

 

The NPR story includes a tool drawn from CMS data that shows the rate of residents on anti-psychotics at nursing homes across the country. You can look up the facility in which your loved one resides.

 

The news coverage shows that this issue is getting increased attention, and that’s a good thing. I think that as Americans age and more people have spouses and parents in nursing homes, the use of anti-psychotics as chemical restraints will have to diminish or end. People won’t stand for their loved ones being drugged into a stupor."

Thanks, Mark, for making sure we included this topic and the latest links for more coverage and your additional commentary.  Along the same lines, I listened to an interesting follow-up conversation on AirTalk, a Los Angeles public radio affiliate's program, discussing "How California is Doing in the National Fight to Curb Over-Medication of Nursing Home Patients."  That program, now available as a 23-minute podcast, included an articulate medical professional, Dr. Karl Steinberg, who described how he sees medication practices changing in long-term care, including better use of behavior health techniques, rather than medication, to help residents.

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December 16, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0) | TrackBack (0)

Saturday, December 13, 2014

Los Angeles Public Radio Affilliate Continues Discussion on Capacity and Consent

AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.

Here's the link to a podcast of the December 12, 2014 segment.

December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

Oregon Bar Bulletin Addresses Cognitive Decline Issues for Lawyers

In the November 2014 issue of the Oregon State Bar Bulletin, an attorney-counselor at the Oregon Attorney Assistance Program, Douglas Querin, reports that he has had more calls over the past two to three years involving questions of age-related cognitive decline than in all the previous years he has worked in his position. 

One factor potentially contributing to an increase is the number of lawyers who may be staying in practice longer, as a result of the economic downturn's effect on their retirement savings.  In Oregon, more than a quarter of all lawyers are age 60 or over, and nearly half of the active members in the Oregon bar are age 50 or over.

"'The most heartbreaking situations are where a lawyer may have had a stellar reputation for 30 to 50 years of practicing, then changes with cognitive issues, in part because no one raises the problem, and he keeps practicing and gets into trouble, which raises the attention of the bar,' [Assistance Program Attorney Querin] says.  'Then you have a senior lawyer with a great reputation whose legacy ends up being under an ethical cloud.'

 

By the time such discussions take place, the impaired lawyer's reaction may be denial, because part of the cognitive changes may include the inability to recognize that a problem exists, says [Oregon neuropsychologist Michael R. Villaneuva]. 'An inability to know there are difficulties is part of the nature of what's happening to them.'"

In "Ready or Not: When Colleagues Experience Cognitive Decline,"  author Cliff Collins details signs and symptoms of potential cognitive impairment, drawing upon the ABA Senior Lawyer Assistance Committee's 2014 Working Paper on Cognitive Impairment and Cognitive Decline Worksheet. The article further suggests approaches to take with colleagues and urges members of the profession not to "ignore" any problems. 

A companion article in the issue further addresses "Ethical Implications of Aging - The Graying of the Profession," including specific guidance in the ABA Model Rules of Professional Conduct and relevant formal ethics opinions. 

"Thank you" to Dickinson Law Professor Laurel Terry for sharing her copy of the Oregon State Bar Bulletin.

December 1, 2014 in Cognitive Impairment, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Friday, November 28, 2014

Maryland Court Affirms Criminal Conviction re Daughter's Theft From Father's Joint Account

In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes.  The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.   

The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.  

The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute." 

Several key facts supporting the conviction are described in the decision, including:

  • Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
  • The father retained control over the checkbook for the account.
  • Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
  • The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.

Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.

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November 28, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, November 27, 2014

The "Aging" Art of Communication - A Holiday Topic?

Recently I have encountered several thoughtful articles about the language we use, and the approaches taken, when talking with older persons.  This seems to be an especially appropriate topic for the holiday season, when families often come together, sometimes from great distances. Whether we are talking with clients or family members, some of the same dynamics may be in play, especially when the question is about planning for the future.

From the ABA Commission on Law and Aging's Bifocal publication, comes David Solie's "The Wrong Signals: Shutting Down the Planning Conversation Before It Starts."  He encourages us to "consider the psychological landscape of older clients -- it is a world embedded with two dominant agendas posing significant resistance to change. Together, these psychological currents create a deep inertia to disrupting the status quo."  He labels these barriers to change as:

  • Ambivalence and the "Righting Reflex," and
  • The Need for Control

He suggests approaches, including the use of open-ended questions, reflective listening, and making a conscious decision about what words to use.  For example, he suggests that when we start to discussion options, we explain more clearly that advance planning helps to "preserve choice" and avoids "loss of control."   

Another potential problem may arise from "Elderspeak," a label social scientists use to refer to a tendency to use "patronizing" tones or words when speaking to anyone who is older.  One recent article in McKnight's News made me chuckle, as it points to the well-meaning but potentially misguided use of words such as ""honey" by professionals when working with elders. 

My father, a federal judge for more than 30 years, at age 89 may have forgotten many things -- but he does not take kindly to being called "honey" by strangers.  He now has an entire assisted living campus, even a few of the other residents, calling him "Judge" or "Your Honor." I bet you might know a judge or two like that?  When it comes to control, I'm not sure who is teaching whom about  holding court.  

Here's to more humor in all of our holidays -- and more opportunities for effective communication -- both within the family and beyond.  Happy Thanksgiving!

November 27, 2014 in Cognitive Impairment, Ethical Issues, Housing, Retirement, Science | Permalink | Comments (0) | TrackBack (0)

Monday, November 24, 2014

Proposed Changes to Attorney Disciplinary Rules Follow Recent Theft Reports

Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:

  • imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
  • clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
  • clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
  • clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status. 

The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the  number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars."  The comment window closed on November 3. 2014.

In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:

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November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2014

A Window Into Long-Term-Care-Insurance "Agency" and Coverage Issues

In Gunnarson v. Transamerica Life Insurance Company, a federal district court in the state of Washington issued a November 6, 2014 order remanding the case to state court on diversity grounds, rejecting the company's argument that joinder of an individual sales agent as a defendant in the case was merely a step to prevent the out-of-state corporate entity from removing the case to federal court.

In rejecting the fraudulent joinder argument, the federal district court outlined several pending factual and legal issues between the parties arising from the dispute over long-term care insurance (LTCI) coverage.  The issues include:

  • whether the defendant agent's relationship with the insurance company, Bankers United (Transamerica's predecessor), was "disclosed" to the purchasers, relevant because under Washington Law, joint and several liability applies to agents of undisclosed principals;
  • whether written promotional materials on LTCI provided by Bankers United barred a claim for misrepresentation in light of alleged oral misrepresentations by agent at the time of sale regarding dementia care; and
  • whether a claim of misrepresentation, for a policy of LTCI sold 18 years ago, is barred by the statute of limitations, or whether there is an issue of fact about whether and when the purchaser knew or should have discovered that benefits would be paid only for "nursing home" facility care.

In Washington, as in many states, state law changed to expressly require LTCI insurers to cover non-nursing home based care; however, the statutory change apprently occured after the effective date of the policy in question. 

The federal court order linked above resulted in remand to the state court for further proceedings under Washington law. (Allegations, of course, are not the equivalent of proof.)

November 18, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (1) | TrackBack (0)

Monday, November 17, 2014

Would Trustees' Investment in High-End Art Be Consistent with Fiduciary Standards?

We're discussing fiduciary duties for trustees in my Wills, Trusts & Estates course and perhaps that is why an article in the November- December issue of the ABA publication, Probate & Property, caught my eye.  The cover article is "Painting a Not-So-Pretty Picture: Art as an Alternative Investment in Fiduciary Accounts."  Author Michael Duffy, from Goldman Sachs, reports on recent eye-popping headlines for auction sales of artwork.  He  discusses the sales figures against the background of fiduciaries seeking better-than-conservative returns through use of alternative investments.  He outlines the tangible and not-so-tangible variables at the heart of art investment, leading to his thesis:

"It is the position of this author, however, that trustees should not be persuaded by the seemingly lackluster performance of their traditional investments reltative to these sensational headlines and that they should ignore the steady drumbeat of savvy marketers who have a vested interest in convincing them otherwise. There are simply too many considerations when buying and selling art that call into question the prudence of any such endeavor when undertaken by a fiduciary held to the highest investment standards under the law."

It is interesting to note that "absence of federal and state regulation" is one of the reasons for caution cited by this financial services author.

November 17, 2014 in Estates and Trusts, Ethical Issues, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, November 16, 2014

Examining Maine's Unique Improvident Transfers Law (ABA Bifocal)

In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. BIFOCALSeptember-October2014_cover_jpg_imagep_107x141  As the author, Maine elder law attorney Sally Wagley, explains,

"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."

Has the law been useful in Maine?  Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect.  She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."

For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."

November 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | TrackBack (0)

Thursday, November 13, 2014

Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"

Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA).  The POA named him as agent for his 86 year-old aunt.  At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:

"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."

In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own.  In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA  to make the transfers in question was a crime.  The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."

An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA. 

When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs.  He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional." 

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November 13, 2014 in Crimes, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Does Your LTC Facility Have Policies on Intimacy and Sexual Behavior?

Two challenging topics for many families: how to handle death and intimacy for aging family members. We're probably doing better coming to grips with the need to address death than intimacy. When long-term care is required, involving third-parties, the question of sexual behavior can become more important.

Along that line, Bryan Gruley at Bloomberg News wrote a thoughtful series addressing the social, legal, moral -- and just plain tough -- questions connected to sexual behavior that can arise with older persons in congregate settings.

See:

Part 1: Boomer Sex with Dementia Foreshadowed in Iowa Nursing Home.

Part 2:  Sex in Geriatrics Sets Hebrew Home (Riverdale NY) Apart in Elderly Care

Bloomberg Visual Data:  Elder Care Sex Survey Finds Caregiviers Seeking More Training

The Bloomberg series quotes Albany Law School Professor Evelyn Tenenbaum, a civil rights, health care, and bioethics scholar, citing her article "To Be or to Exist: Standards for Deciding Whether Dementia Patients in Nursing Homes Should Engage in Intimacy, Sex and Adultery" from the Indiana Law Review

 

November 7, 2014 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Sunday, November 2, 2014

"Her Dying Wishes" Aren't Enough to Justify Forgery of Her Will

Catherine "Kitty" Haughey passed away in 2004, a widow without children of her own.  Her godson lived with her the last two years of her life in County Armagh in Northern Ireland.  She was leaving behind the lovely sounding "Annie's Cottage" and Larkin's, a family pub, along with a substantial sum of cash.  Directions for distribution of her property were contained in a will dated two weeks before her death. A Pub in Northern Ireland

Ten years later, her godson has pled guilty to forgery of that will, although still trying to rationalize his actions by saying the new document that gave him the house and pub "reflected her dying wishes." He was finally compelled to concede he'd gone about "changing the will in the wrong way."

Indeed he did, with help in drafting and "witnessing" the will coming from a surveyor and a local doctor, both of whom earlier pled guilty to assisting in the forgery.  They received suspended sentences. 

The 53-year-old "godson," Francis Tiernan, tried to avoid prosecution in Northern Ireland by fleeing the court's jurisdiction and fighting extradition after he was discovered in the south of Ireland.  His prison sentence is three years. 

The actual will, dated 2003, had left Tiernan just £1000, while the reported value of the property was more than £1,000,000. An autopsy was performed following exhumation of Kitty Haughey's body, showing she died of natural causes. Her death came close in time to those of her only two siblings.

Hat tip to Dr. Joe Duffy of Queen's University Belfast for sending me this story. For another tale of misuse of legal documents to gain control over a pub in Ireland, see "The Lesson of the Irish Family Pub" that I wrote for Stetson Law Review in 2010.  That time the "help" came from a lawyer who contended he was representing the "family" in preparing deeds. For more on Francis Tiernan's woes and indications of his colorful past, see links below. 

November 2, 2014 in Crimes, Estates and Trusts, Ethical Issues, International | Permalink | TrackBack (0)

Friday, October 31, 2014

Seniors, LTC Workers and Flu Shots (Who Gets What and Who Should?)

ElderLawGuy Jeff Marshall has an interesting blog post, inspired by a recent visit to his doctor where he was asked whether he wanted a "high dose" flu shot. He hadn't heard of high-dose shots.   He demonstrates the same careful approach to this personal decision -- lots of research! -- that he uses with legal analysis for his clients.

But, along the same line, I wonder whether we should be asking related questions of long-term care workers and agencies.  In Arizona, where my parents (both age 89) live, I learned that many home-care agencies (at least those not "Medicare-Certified") do not provide their employees with such vaccinations, and indeed such workers are often treated by their agencies as independent contractors, so they may be without employer-sponsored health insurance coverage.  Such workers struggle to make ends meet -- and flu shots can seem like a luxury.  But those same workers probably need to be immunized to better protect their clients.  It may be up to the seniors themselves to be aware of this issue, and to pay for and make arrangements for their aides to get flu shots (of any strength).  

What are the rules and practices in your state for immunization of in-home care-providers for the elderly?

I often struggle with how far to go in asking for government regulation of risk-factors; but at a minimum, it seems like families need to make their own cost-benefit analysis on immunization of home-aides. 

 

October 31, 2014 in Consumer Information, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2014

NAELA Commentary: Roles For Attorneys In Facilitation Or Avoidance Of Financial Abuse

Our friends Stetson Law Professor Roberta Flowers and Pennsylvania Elder Law Attorney Amos Goodall have joined forces in writing a very interesting article, "In Fear of Suits: The Attorney's Role in Financial Exploitation" published in the Fall 2014 issue of the NAELA Journal.

To examine the potential for attorneys to facilitate or hinder financial abuse of elders, they take a close look at key players in the Brooke Astor case.  For example, they discuss the elderly philanthropist's purported execution of three codicils, pointing out that each document was "drafted by superbly educated, well-respected and even renowned 'establishment' lawyers."  The authors ask whether more could have been done by these lawyers to protect Astor from the machinations of two other individuals, her son "Marshall" and Attorney Morrissey, both of whom were eventually convicted, but only after Mrs. Astor's death. 

To provide insight into this key question, Flowers and Goodall take a step back from specific facts of the Astor case, to discuss key ABA Model Rules, including Rule 1.2 (Protection of Client's Objectives), Rule 1.7 (Protecting Clients from Divided Loyalties), Rule 1.14 (Protecting Clients with Diminished Capacity) and Rule 4.2 (Protecting Clients Who Are Represented from Overreaching).

I can see this article providing a great platform for discussion, both among law students and practicing attorneys.   

October 30, 2014 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2014

Debating Fiduciary Duties and Resident Rights in Continuing Care Communities

Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge.  The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."  NaCCRA LeadingAge Meeting October 2014

Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding.  Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating.  The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident.  He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees.Jack Cumming October 2014  I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.  Dan Seeger October 2014

In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country.  Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve.  For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.

Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market.  Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH.  CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.  

As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer. 

Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models.  Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.       

October 27, 2014 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, October 26, 2014

Filial Liability + Bankruptcy = Trouble

As regular readers of the Elder Law Prof Blog may recognize, I reside and work squarely in a zone where "filial support claims" are more than just theoretical propositions.  Pennsylvania continues to be Ground Zero for modern complications arising from use of a Colonial era law that permits adult children to be held liable for the cost of an indigent parent's long-term care. 

The latest example is In re Skinner, 2014 WL 5033258, decided by Bankruptcy Judge Madeline Coleman in the Eastern District of Pennsylvania on October 8, 2014.

The issue is whether one sibling can prevent another sibling from "discharging" any obligation to pay an assisted living facility for their mother's care.  Both brothers were sued by the facility, resulting in a default judgment against one brother (Thomas) for $32,225, who in turn sought discharge of that debt in bankruptcy court.  Brother William, probably facing the prospect of picking up the full tab for his defaulting brother, initiated an adversary proceeding, seeking to prevent the discharge.   The court concludes that Brother William "lacks standing" to prevent Brother Thomas' discharge of the debt to the assisted living facility.

In dismissing Brother William's claim, the Bankruptcy Judge addresses both the Uniform Fraudulent Transfer Act and Pennsylvania's filial support law.  According to the opinion, Brother William alleges that Thomas used a Power of Attorney executed by their mother in 2007, to access her bank accounts in a "scheme [with his wife] to use the Mother's assets, including her interest in long-term care benefits, to fund approximately $85,000 of their personal expenses." However, the court concludes that even accepting the truth of allegations that "suggest that the Mother was injured by the [Thomas'] conduct, that conduct was directed at the Mother and her property. The conduct was not directed at [William]."  The Bankruptcy Court also rejected any theory of "derivative standing."  

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October 26, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

"Couples Euthanasia"?

Yesterday I published a post on assisted dying "tourism" in Switzerland. Following up that story is another story on a related topic. Reported in the Daily Mail Online, Elderly couple to die together by assisted suicide even though they are not ill focuses on a Brussels couple in their late 80s who, despite not being terminally ill, plan to die together because they "fear loneliness if the other one dies first from natural causes" and the couple's 3 adult children have said they would be unable to care for the surviving parent when the first one died. The kids have found a doctor to help on the basis of the parents' "mental  anguish constituted the unbearable suffering needed to legally justify euthanasia."

The couple has selected the date and the method of euthanasia.  Although double euthanasia may seem novel, theirs will not be the first time this has occurred.   However, their request has created something of a stir in the UK, according to the story.  The story notes that in Brussels, evidently mental anguish is becoming a more accepted basis for a euthanasia request.

Thanks to Sushil Preet Cheema, one of my elder law concentration students, for sending me the link to this story.

 

 

October 3, 2014 in Advance Directives/End-of-Life, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (1) | TrackBack (0)

Thursday, September 25, 2014

October 1: International Day of Older Persons

In 1990, the United National General Assembly, by Resolution 45/106, designated October 1 each year as the International Day of Older Persons (actually, the original resolution referred to "International Day for the Elderly") .  As observed by UN Secretary-General Ban Ki-moon, the international focus on aging-related concerns becomes more important each year:

"By 2050, the number of older persons will be twice the number of children in developed countries, and the number of older persons in developing countries is expected to double. This trend will have profound effects on countries and individuals."

John Marshall Law School, in conjunction with Roosevelt University  in Chicago, will use the occasion to further the discussion on "next steps" for the Chicago Declaration on the Rights of Older Persons, a statement formulated over the last year and presented before the UN in August.  Here are details of their planned October 1 event.

Will your school also be furthering the discussion? 

September 25, 2014 in Discrimination, Ethical Issues, International | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

PA Attorney Disbarred After Ten Years of Involvement In "Living Trust Scams" Targeting Seniors

Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."

Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred.  This particular disciplinary action has been a lo-o-o-o-ng-time coming.

Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities.  Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling.  He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of  Voluntary Compliance. 

The conduct, however, apparently did not stop.  An undercover investigator was used to document continued problems.   In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies  in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."

In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.

September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, September 12, 2014

Will Americans Still Be Paying Off on Student Loans As Seniors?

In a GAO study titled "Inability to Repay Student Loans May Affect Financial Security of Small Percentage of Retirees," researchers reveal that a significant -- and growing -- proportion of "student loan" debt is owed by Americans aged 65 or older.  In addition to the growth in the total amount of "senior" student loan debt, from $2.8 billion in 2005 to $18.2 billion in 2013, the GAO findings include:

  • Relatively few households headed by individuals 65 or older hold student loan debt -- the number is about 706,000 households in the U.S. -- but the amount they owe may be significant, with estimates that the median debt owed is around $12,000, as compared to a median for those aged 64 and younger of $13,000.
  • Most -- about 82% -- of this debt was for the individual's own education.  It is not known whether how "old" the loans are.
  •  Older borrowers hold defaulted federal student loans at a higher rate -- and defaults can have conquences, including offsets on Social Security payments.  Generally speaking, student debts cannot be discharged in bankruptcy; however adjustments may be possible to keep the individual's monthly income above the poverty threshold.

For more discussion on the GAO report, see "Senior (Citizen) Student Debt Rising," in Inside Higher Ed by Michael Stratford.  Hat tip to Professor Laurel Terry for pointing out this new study. 

September 12, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Retirement | Permalink | Comments (0) | TrackBack (0)