Tuesday, August 23, 2016

Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31

Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.

These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation.  It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.  

Thanks, Jeff!  

August 23, 2016 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 22, 2016

Turning Silver Into Gold? Another "Advancement" in Non-Institutional Senior Care

The New York Times on Sunday had an exceptionally well written and important article about the latest trend in senior care.  For-profit companies are now allowed to participate in PACE, the Program of All-Inclusive Care for the Elderly, a Medicare- and Medicaid-approved program designed to permit innovation in care that doesn't require residence in high-priced settings such as traditional nursing homes.  Sarah Varney writes:

Inside a senior center here [in Denver], nestled along a bustling commercial strip, Vivian Malveaux scans her bingo card for a wining number.  Her 81-year-old eyes are warm, lively and occasionally set adrift by the dementia plundering her mind.


Dozens of elderly men and women -- some in wheelchairs, others whose hands tremble involuntarily -- gather excitedly around the game tables.  After bingo, there is more entertainment and activities: Yahtzee, tile-painting, beading. 


But this is no linoleum-floored community center reeking of bleach.  Instead, it's one of eight vanguard centers owned by InnovAge, a company based in Denver with ambitious plans.  With the support of private equity money, InnovAge aims to aggressively expand a little-known Medicare program that will pay to keep oldr and disabled Americans out of nursing homes.

The feature-length article details how "private equity firms, venture capitalizes and Silicon Valley entrepreneurs have jumped" onto the PACE niche. For more on this important development, read Private Equity's Stake in Keeping the Elderly at Home.

My thanks to Laurel Terry and Karen Miller for sharing this article with us. 

August 22, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Friday, August 19, 2016

Want to Laugh? Read "Old Age: A Beginner's Guide," by Michael Kinsley

I'm always just a bit suspicious of books that promise to make me laugh.  I think it is because I like to be surprised by humorous moments, rather than feel duty-bound to chuckle, guffaw or giggle.  

Nonetheless, I succumbed to the promise in the blurb for Michael Kinsley's 2016 book, Old Age: A Beginner's Guide, that it was a "surprisingly cheerful book ... and a frequently funny account of one man's journey to the finish line."  

And I'm glad I did.  I did indeed laugh, and at the most surprising of moments, as when he described the need to avoid the doors of his refrigerator because of the magnets that might interfere with the technology in his brain used to keep symptom of Parkinson's Disease at bay.  He has the knack of making wry observations about his own mortal state to think broadly about what it is for all of us to age. I can see the short essays that make up this book being useful in a class on elder law or estate planning.  

His words are perhaps most poignantly relevant to boomers.  For example, on a goal of living longer, he writes:

Even before you're dead, you may want to ask yourself whether this is what you really want.  Is being alive all that desirable if you're alive only in the technical sense?  Millions of boomers are watching their parents fade until they are no longer there. As they approach their seventies, they start observing their own peer group losing their collective marbles, one at a time. And they  reasonably conclude that the real competition should not be about longevity. It should be about cognition.

But he doesn't stop there, exploring other, potentially more important goals for the competitive boomer generation to consider.  

This is a short, deep book.  And I recommend it, not least of all because it gives readers welcome opportunities to smile. 

August 19, 2016 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science, Statistics | Permalink | Comments (0)

Thursday, August 18, 2016

A Day in the Life of Phone Scams

I'm house-sitting in Phoenix this summer, and I've been gobsmacked, to use a good British word, to realize exactly how many unwanted callers manage to circumvent the home's do-not-call registrations.  Even worse is to realize how many of the calls expressly target senior consumers.

One of the most annoying call begins, "Hello Mrs. XXXX, I see that your physician has prescribed Xarelto for you, and I'm calling to let you know that we can offer you special pricing, at less than half what you are currently paying....."

Suffice it to say that this was a scam.  No physician had shared any prescription information about the homeowner in question.  But for the older consumer worried about costs, I can just imagine how effective the scammer's "guess" could be, as the scam focused on a very expensive and important drug for many older patients.  They were after credit card information.  I bet the boilerroom for this operation has a whole list of popular "senior" prescription drugs. 

Another frequent caller poses as the IRS and claims there is a deficiency on some tax payment that can be "handled" over the phone. Again, a scam -- and certainly one that could frighten many people.  In a single week, I intercepted 7 such calls, despite each time attempting to make it clear I knew this was a scam, and then blocking the number.  

Perhaps the most frequent callers are those trying to market "solar" systems, guaranteeing tax credits or rebates  -- and I guess that one just goes with the territory when you are living in sun-drenched Arizona.

August 18, 2016 in Cognitive Impairment, Consumer Information, Crimes, Ethical Issues | Permalink | Comments (0)

Monday, August 15, 2016

Medical-Legal Partnerships Are Needed For Elder Advocacy and Protection

In July, I drove some 2500 miles, from Pennsylvania to Arizona, to begin an exciting sabbatical opportunity.  I enjoy this drive (especially since I tend to do it fairly rarely, perhaps once every seven years).  I frequently visit friends along the way, and this summer I was struck by how many friends had saved up tough elder law stories for me.  

A theme emerged from their stories.  They would tell me, "I have an aging friend (or sometimes a family member or neighbor) who is in serious danger  of physical or financial harm, but refuses to cooperate with reasonable plans to solve the problems. What are my options to help this person I care about?"

In one instance, it seemed clear the at-risk individual was affected by some level of cognitive impairment.  But how to know for sure?  Was  the refusal to cooperate with a "better plan" the product of a sound, if somewhat eccentric mind?  A neurocognitive assessment seemed warranted.  We tried to arrange one. But the earliest appointment available was more than 60 days away and the  potential for harm was immediate.

Thus, it was with great interest I read a preview of  an article in the upcoming issue of the ABA publication, Bifocal.  Professors Marshall Kapp, Shenifa Taite and Gregory Turner outline "Six Situations in Which Elder Law Attorneys and Physicians Caring for Older Patients Need Each Other."  They are writing about a critical need for Medical-Legal Partnerships designed specifically to assist older persons and their family members.   For example, on the topic of "self-neglect," the authors explain:

Mistreatment of older persons by others is a serious problem. Both the medical and legal conundrums became more complicated, and thus even more amenable to interprofessional collaboration, when self-neglect is entailed. A significant percentage of older adults, mainly living alone, do not regularly attend to their own needs or well-being regarding health care, hygiene, nutrition, and other matters. The majority of cases reported to APS agencies by health and social service professionals and family members are triggered by suspected self-neglect. The health care system expends considerable efforts trying to intervene in these situations to prevent increased rates of hospitalization, nursing home placement, and even death.


In situations involving suspected elder self-neglect, the physician’s role is vital in recognizing the potential problem, characterizing the nature and seriousness of the risk posed, and trying to identify clinically and socially viable intervention strategies. Among other concerns, decisional capacity issues almost always arise in these cases. The physician may look to an attorney for advice about legal reporting requirements or options, as well as the legal boundaries within which interventions may be designed and implemented in a manner that best respects the older person’s dignity and autonomy while protecting the vulnerable at-risk individual from undue foreseeable, preventable self-generated harm.

A growing number of  law schools (including Penn State's Dickinson Law) have established Medical-Legal Partnership Clinics, where the collaborative relationship between attorneys and physicians is established in advance of need by clients. Often such clinics focus on younger clients, especially children.  Elder-specific services are an important subset of the services that can be provided in a timely and professional setting.  For more, read the full Bifocal article published in the-August 2016 issue -- and ask whether such services are available in your community.   

August 15, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, Legal Practice/Practice Management | Permalink | Comments (0)

Wednesday, August 10, 2016

Integrating Criminal Justice Standards with Professional Conduct Rules for Attorneys Representing Clients with a Mental Health Disability

During the 2016 Annual Meeting of the American Bar Association that concluded on August 9 in San Francisco, the ABA adopted "the black letter of the ABA Standards for Criminal Justice: Criminal Justice Mental Health Standards, chapter seven of the ABA Standards for Criminal Justice, dated August 2016, to supplant the Third Edition (August 1984) of the ABA Criminal Justice Mental Health Standards." 

Here is a link to the Full Resolution

Here is a link to further details and a report: Proposed resolution and report

Significantly, the revised ABA standard expressly requires criminal defense lawyers to consider the implications of ABA Model Rule of Professional Conduct 1.14 (for representation of a client with diminished capacity), in determining whether, when and how much information can be shared about the client's disability with family members or others during the course of representation.  My initial reaction is this integration of the two concepts may actually broaden the defense attorney's authority to share information, rather than restrict it.  

Any thoughts among our readers? My special thanks to my colleague Professor Laurel Terry at Dickinson Law, guru of all matters related to professional conduct rules for attorneys and judges, for sharing the revised standard. 

August 10, 2016 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Tuesday, August 9, 2016

Does Use of "Alzheimer's" as a Catch-all Label Cause Confusion?

Recently, a friend who is a neuropsychologist reminded me that the medical profession is moving away from using either dementia or Alzheimer's as a broad category label.  For example, in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, commonly referred to as the DSM followed by a number that indicates the edition, the current edition (DSM-5) replaced the label "Dementia, Delirium, Amnestic and Other Cognitive Disorders" with "Neurocognitive Disorders" or NCDs.  As we talked, it occurred to me that this is an important change, and one that legal professionals should also embrace more strongly.  While short-hand labels can be useful, I think that using dementia alone as a label can invoke a stereotype that has the potential to confuse the public, while also unnecessarily frightening the client or client's family.  It can invoke an image of nursing homes or institutionalization, rather than what may be more appropriate, such as supported or guided decision-making or use of alternative decision-makers or agents, especially in early stages of the disorders.

As the DSM-5 further explains:

Although cognitive deficits are present in many if not all mental disorders (e.g., schizophrenia, bipolar disorders), only disorders whose core features are cognitive are included in the NCD category.  The NCDs are those in which impaired cognition has not been present since birth or very early life, and thus presents a decline from a previously attained level of functioning.


The NCDs are unique among DSM-5 categories in that these are syndromes for which the underlying pathology, and frequently the etiology as well, can potentially be determined.  The various underlying disease entities have all been the subject of extensive research, clinical experience, and expert consensus on diagnostic criteria.... Dementia is subsumed under the newly named entity major neurocognitive disorder, although  the term dementia is not precluded from use in the etiological subtypes in which the term is standard. Furthermore, DSM-5 recognizes a less severe level of cognitive impairment, mild neurocognitive disorder, which can also be a focus of care....

Indeed, greater appreciation for mild neurocognitive disorders is important in legal circles, as the changes may often be subtle or difficult to recognize, but still very important when talking about legal capacity or decision-making under the law.  

August 9, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Science | Permalink | Comments (0)

Monday, August 8, 2016

Which "Breakthrough" Will Prove to be the Real Miracle Needed to Prevent or Cure Alzheimer's?

I've been writing for the Elder Law Prof Blog for almost exactly three years, and it has been a wonderful way to keep up with the vast array of topics that affect "law and aging," Blogging has broadened my horizons, especially with respect to medicine and science.  At first I would get excited about each new announcement of a potential drug or treatment that "might" cure Alzheimer's.

Over time, you learn to be more, shall we say, judicious in reporting on the report of cures.

Australian researchers announced last year that they "have come up with a non-invasive ultrasound technology that clears the brain of neurotoxic amyloid plaques - structures that are responsible for memory loss and a decline in cognitive function in Alzheimer’s patients." Their preliminary work is with mice:

Publishing in Science Translational Medicine, the team describes the technique as using a particular type of ultrasound called a focused therapeutic ultrasound, which non-invasively beams sound waves into the brain tissue. By oscillating super-fast, these sound waves are able to gently open up the blood-brain barrier, which is a layer that protects the brain against bacteria, and stimulate the brain’s microglial cells to activate. Microglila cells are basically waste-removal cells, so they’re able to clear out the toxic beta-amyloid clumps that are responsible for the worst symptoms of Alzheimer’s.


The team reports fully restoring the memory function of 75 percent of the mice they tested it on, with zero damage to the surrounding brain tissue. They found that the treated mice displayed improved performance in three memory tasks - a maze, a test to get them to recognise new objects, and one to get them to remember the places they should avoid.


"We’re extremely excited by this innovation of treating Alzheimer’s without using drug therapeutics," one of the team, Jürgen Götz, said in a press release. "The word ‘breakthrough’ is often misused, but in this case I think this really does fundamentally change our understanding of how to treat this disease, and I foresee a great future for this approach."

What has happened since the first news "alert," published in March 2015?   Perhaps one of our readers knows the latest on this particular approach, and can bring more light to bear on this breakthrough.  For more, read,  Science Alert: "New Alzheimer's Treatment Fully Restores Memory Function."  Special  thanks to GW Law Professor Naomi Cahn for bringing this item  to our attention.

August 8, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Science | Permalink | Comments (0)

Friday, August 5, 2016

And then there is the "Alligator Problem"....

Earlier in the week, I shared the feature news story on "avoidable deaths" in Pennsylvania long-term care, often shown to be linked to inadequate staffing (whether in numbers or training, or both).  The article began with a fall of a man while apparently unattended, and also identified residents "choking" on food as another documented risk associated with staffing and supervision.

But other senior care communities in the country may have their own unique complications.  South Carolina has reported its first apparent "alligator attack," sadly connected to the death of a 90-year-old woman, who was earlier reported missing from her assisted living community.  For more, read the Post-Courier report from  July 29, 2016.   


August 5, 2016 in Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (1)

Wednesday, August 3, 2016

Tackling the Issue of "Avoidable Deaths" in Long-term Care Settings

Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings.  The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:

Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him.  DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.


"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.

The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:

In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes.  The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.

Spokespeople from both the for-profit and nonprofit segments of  the industry are quoted in the article and they push back against the investigators' conclusions.  

I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer.   My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots. 

The trade-off for "no restraints" can be higher risk.  Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team.  For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool.  I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.

None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary.  For more, read "Failing the Frail." Our thanks to Doug for sharing this good article. 

August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)

Tuesday, August 2, 2016

Tough Talk about Health Care Fraud

McKnight's News is a publication for insiders in the long-term care industry, reaching professionals who operate nursing homes, extended care sites, CCRCs and more. John O'Connor, who has been with McKnight's for more than 20 years, recently published  a candid editorial about factors affecting health care fraud in the industry.  He writes:

[G]iven how easy it is to cheat these days, we probably shouldn't be terribly surprised that so many operators give in to temptation. That's especially the case when it comes to invoice preparations. 


Let's be honest: How hard is it to put a resident in a higher RUGs category than is probably accurate? Or to bill for therapy services that were not actually delivered? Or to have therapists working overtime doing services that never should have occurred in the first place? And that, my friends, is just the tip of the proverbial iceberg.


Throw in stiff competition, incentives that reward upcoding, a dearth of interested investigators and good old-fashioned human greed, and what we have here is a breeding ground for creative accounting.

For more, read "It's Time for 'The Talk' About Healthcare Fraud."  

August 2, 2016 in Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare | Permalink | Comments (0)

Monday, August 1, 2016

New Scholarship: Can Adults, including Older Adults, Give Advance Consent to Sexual Relations?

As some readers may recall, last year we reported on the emotionally fraught criminal trial in Iowa for a former state legislator, who was ultimately acquitted of sexual assault of his wife.  The allegations arose in the context of alleged sexual relations with his wife after she was admitted to a nursing home.  

Assistant Professor of Law Alexander A. Boni-Saenz, from Chicago Kent College of Law, has drawn upon this case and others to further explore his proposals for "advance directives" whereby adults could specify their decisions in advance of incapacity.  Alex's latest article, Sexual Advance Directives, forthcoming in the Alabama Law Review, is available on SSRN here.   From the abstract:

Can one consent to sex in advance? Scholars have neglected the temporal dimension of sexual consent, and this theoretical gap has significant practical implications. With the aging of the population, more and more people will be living for extended periods of time with cognitive impairments that deprive them of the legal capacity to consent to sex. However, they may still manifest sexual desire, so consenting prospectively to sex in this context serves several purposes. These include protecting long-term sexual partners from prosecution by the state, ensuring sexually fulfilled lives for their future disabled selves, or preserving important sexual identities or relationships. The law currently provides a device for prospective decision-making in the face of incapacity: the advance directive.


The central claim of this article is that the law should recognize sexual advance directives. In other words, people facing both chronic conditions that threaten their legal capacity to make decisions and institutional care that threatens sexual self-determination should be able to consent prospectively to sex or empower an agent to make decisions about sex on their behalf. To justify this claim, the Article introduces a novel theory of sexual consent—the consensus of consents—that diffuses the longstanding philosophical debates over whether advance directives should be legally enforceable. With this normative foundation, the Article then draws on insights from criminal law, fiduciary law, and the law of wills to fashion a workable regime of sexual advance directives that adequately protects individuals from the risk of sexual abuse. 

Alex is a thoughtful writer on challenging topics, often looking at the intersection of health care, estate law and elder law planning.

August 1, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues | Permalink | Comments (1)

Thursday, July 28, 2016

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

  • The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
  • Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
  • The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
  • Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
  • Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
  • Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
  • Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

July 28, 2016 in Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Statutes/Regulations, Veterans | Permalink | Comments (1)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!


July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Friday, June 24, 2016

When "Good Enough" Is Not Good Enough At All

Our friend, GW Law Professor Naomi Cahn, has shared with us a recent essay by her long-time friend, Cindy Schweich Handler, who writes of the death of her mother-in-law.  This essay presents an important counterpoint to the lawsuit that Becky Morgan reports on today for our Blog, about a California lawsuit that attempts to challenge California's physician-assisted suicide law.

Ms. Handler writes with sensitivity -- and disagreement -- about the decision, at age 86, of her mother-in-law to end her own life:

Ellen is dying the way she lived: actively, with a lot of input. At 86, like so many of her contemporaries, she suffers from multiple maladies: a slow-growing leukemia called CLL; a recent mini-stroke; spinal stenosis that pains her legs and numbs her hands; recurring bouts of intestinal distress that leave her dehydrated and housebound. The ailments are awful and life-disrupting, but none of them are finishing her off. She doesn’t want to acclimate herself to wheelchairs, live-in aides and other affronts to her independent self-image. What she wants is to not treat her symptoms, to voluntarily stop eating and drinking, and to die.


While her pronouncement that she’s “had a good run” has left Harry and me sidelined with shock, our eldest son, Ted, understands....


Ted finds Ellen an excellent palliative-care doctor near her New Jersey retirement community who consults with the two of them for hours, making sure the patient isn’t suffering from a temporary, treatable depression. The doctor conference-calls with Harry and his two siblings, and they affirm that they all want what she wants. The Do Not Resuscitate and more detailed Physician Orders for Life-Sustaining Treatment forms are filled out and displayed prominently on her dining room table. Jennifer, who has experience in these situations, is available, and she can be at Ellen’s side 24/7. Everything is in place.


Then, a complication: Ellen’s independent living community prohibits outside aides from working there. For my mother-in-law to die in a hotel or apartment rented for the occasion is unthinkable to me. Harry and I are empty-nesters, with a third-floor suite that’s quiet and private. It makes sense that she should die in the guest room above our bedroom.

Although Ms. Handler and her husband provide Ellen her last place of hospice and palliative care, Ms. Handler doesn't embrace Ellen's plan:

What I don’t understand, why I have such a powerful case of cognitive dissonance, is her timing. Her retirement-home friends always remark on how she holds court in the dining hall after meals. Neat stacks of the Economist top her end table. She goes on field trips to museums, sees movies before I do. Surely she wants to stick around to see more graduations, or at least to find out what happens with the whole Donald Trump thing.

She suggests Ellen has more "good-enough years" left in her.   But, as the essay explains, good enough is not good enough for a woman of Ellen's steely strength and approach to life.

For the full account, I recommend "I didn't like it, but this was the death she chose," from the Washington Post. Thank you, Naomi, for sharing this timely essay, and to  Ms. Handler for her own emotional strength in writing it.  The comments appearing on the Washington Post website are also important reading. 

June 24, 2016 in Current Affairs, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0)

Tuesday, June 21, 2016

New Concepts from Authorities Who Investigate and Prosecute Scammers and Financial Abusers

On June 15,  I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders.  It was very good.  Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation.  Here were some of the "take away" messages I heard:

  • "Age 78" -- why might that be important?  Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch."  As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment"  creates the "happy hunting ground" for the scammer.
  • "I make 'em feel like they are Somebody again."  That's how one scammer explained and rationalized his approach to older adults.  By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again.  That "reaction" by the older  consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money."  Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
  • "Psychological reactives."   That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish."   An indirect, oblique approach may be necessary to help the victim understand.  One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses. 
  • "Financial Institutions are increasingly part of the solution."  According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or  by making "all individuals" who suspect such fraud mandatory reporters.  Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.

The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse.  One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation." 

June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)

Friday, June 17, 2016

Bifocal: Examining Less Restrictive Alternatives to Guardianships

The ABA's Bifocal publication includes a new resource guide designed to help lawyers identify and help to implement decision-making options for persons with disabilities that are less restrictive than guardianships.  

The "PRACTICAL Tool," with the first word intended to serve as an acronym for nine steps that a lawyer can use to identify legal and practical approaches, includes:

  • Presume guardianship is not needed
  • clearly identify the Reasons for concern;
  • Ask if a triggering concern may be temporary;
  • determining whether the concerns can be addressed by Community resources;
  • ask if the person already has a Team to help make decisions;
  • Identify the person's abilities;
  • screen for potential Challenges;
  • Appoint a legal support consistent with the person's values; and
  • Limit any necessary guardianship petition. 

For more, read Resource for Lawyers Targets Options Less Restrictive than Guardianship, Bifocal, the Journal of the ABA Commission on Law and Aging, Volume 37, Issue 5. 

June 17, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0)

Thursday, June 16, 2016

A Window on a "Small" Case of Exploitation in New York

A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia.  One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members.  The court found that he  was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris."  Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.  

The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid.  See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.  

That is the "befriender" side of the issues.  However, the court also addressed the possibility of a will executed in 2013.  The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity.  That plan backfired.

The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.  

The court wrote:

Continue reading

June 16, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases | Permalink | Comments (0)

Wednesday, June 15, 2016

Nebraska Mandates Protection for Health Care Whistleblowers

In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower."  Her experiences with retaliation  -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.

In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:

An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services].  Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law. 

Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."

Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring.  She cautions:

I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.


It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....


When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.

June 15, 2016 in Crimes, Current Affairs, Discrimination, Ethical Issues, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, June 13, 2016

Are Baby Boomers Unique in Isolating Themselves as They Age?

Professor Laura L. Carstensen, PhD, who is the director of the Stanford Center on Longevity, has an intriguing essay in a recent issue of Time magazine, focusing on research on social engagement among the Boomer generation.  She writes

The 55-to-65-year olds just about to join the ranks of the elderly are far less socially engaged now than their predecessors were at the same age 20 years ago.   And this pattern emerged across all traditional measures of social engagement:  Boomers are less likely to participate in community or religious organizations than were their counterparts 20 years ago.  They are less likely to be married.  They talk with their neighbors less frequently.  And it doesn't stop with participation in communities and neighborhoods: boomers report fewer meaningful interactions with their spouses and partners than did previous generations, and they report weaker ties to family and friends. 

She asks, "Should we be worried about these trends?"  For her answers, read "Baby Boomers are Isolating Themselves as They Age." (Hint, the subtitle says: "That's bad -- for everyone.")

June 13, 2016 in Consumer Information, Current Affairs, Ethical Issues, Retirement, Statistics | Permalink | Comments (0)