Wednesday, July 9, 2014

Controversy Brewing In China Over "Elder Law"?

One of the great components of the network of "Law Prof Blogs" is Chinese Law Prof Blog,  edited by Professor Donald Clarke at George Washington Law.  Professor Clarke posted a recent entry entitled "Controversy Over Elder Law in China," pointing to draft legislation related to "support" for the aged.  While the links in this particular posting are -- of course -- to Chinese language sources, I suspect this might be another aspect of the debate about filial support laws that I've been following through Australian media sources.   Here is an English language report on a dramatic Chinese case involving what I would describe as a filial support law matter. Hat tip to my Penn State colleague Professor Beth Farmer for bringing the interesting and wide-ranging Chinese Law Prof Blog to my attention. 

Perhaps we'll hear more about this at the 2014 International Elder Law and Policy Conference in Chicago at John Marshall Law this week.  Stay tuned.  

July 9, 2014 in Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Updates on Programming at July 2014 Int'l Elder Law and Policy Conference

We've previously posted advance information about the International Elder Law and Policy Conference that will be  hosted this week -- July 10-11 -- in Chicago.  The organizers are John Marshall Law School; Roosevelt University, College of of Arts and Sciences; and East China University of Political Science and Law.

The conference will have an interesting format, combining presentations from a range of professionals with experience working with or for older persons, and working sessions to draft a model "International Bill of Rights for Elderly Persons, in parallel with U.N. sessions on ageing. 

As an example of the breadth of participation and coverage at this conference, my session  on Thursday focuses on "Health Care, Caregving for Older Persons and Legal Decision Making," and will be co-moderated with Professor Walter Kendall at John Marshall.  The panel includes the following topics and speakers:

  • "Dementia and Planning Death: The Challenge for Advance Directives," by Meredith Blake at University of Western Austalia Law School
  • "Social Change and Its Apparent Effect on Senior Care Services: A Comparative Study of Post-Soviet Union Russia and the U.S.," by Amy Delaney, partner at Delaney, Delany & Voorn in Illinois, and Alina Risser, a lawyer from Russia, currently studying law at John Marshall;
  • "Rights are Not Good for Older Persons in Long-Term Care Settings? Experience from the European Union," by Nena Georgantzi, Legal Officer for AGE Platform Europe;
  • "Bridging the Caregiver Gap: Does Technology Provde an Ethically and Legally Viable Answer?," by Donna Harkness, University of Memphis School of Law;
  •  "The Insufficiency of Spiritual Support of Urban Elders in China and Suggestions on Legislation," by Jun Li, East China University of Political Science and Law.

 We'll report more after the events on Thursday and Friday!  

July 9, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 8, 2014

The Challenges of Enacting Uniform Laws on Powers of Attorney

If one looks at the Uniform Law Commission website, it appears that slow but steady progress is being made by states in adopting recommended legislation governing Powers of Attorney (POAs).  The ULC recommendation reflected more than four years of research and drafting, culminating in a detailed proposal for POAs issued in 2006.  According to the website, 16 states have enacted the uniform law, with an additional four states, Connecticut, Mississippi, Washington, and my own home state, Pennsylvania, considering adoption in 2014.   The ULC's recommendations were a deliberate attempt 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 of financial abuse of incapacitated individuals." 

On July 3 last week, Pennsylvania's Governor Corbett signed legislation, now designated as Act 95 of 2014, making significant changes to the existing law governing POAs in Pennsylvania.  However, the passage of this law also demonstrates how so-called "uniform" laws may be less than uniform from state-to-state in terms of their actual requirements, and I tend to wonder whether other states have also enacted some variation on the ULC's recommendation. 

Pennsylvania Act 95 of 2014 (available as HB 1429 here) took more than 3 years of drafting, redrafting, hearings, negotiations, and compromises to accomplish.  The spur for adoption was a court decision invalidating transactions executed in reliance on a "void" power of attorney, one purportedly "signed" with an X by a woman while hospitalized.  The majority decision put the financial impact on the party accepting the POA, without regard to whether it was using good faith in relying on a document that may appear valid on its face.  After that decision, many Pennsylvania retirement plan administrators, banks or other financial institutions were reluctant to  honor POAs, fearing they could become the guarantor of misused authority.  See Vine v. Commonwealth of Pennsylvania State Employees Retirement Board, 9 A.3d 1150 (Pa. 2010). 

PA Act 95 of 2014 addresses the "Vine" question by clarifying a grant of immunity for any person who in "good faith accepts a power of attorney without actual knowledge" of voidness or other invalidity.  But Act 95 also mandates certain execution protocols, including:

  • for most but not all POAs, requiring the principal's signature, mark or third-party signature to occur in front of two adult witnesses;
  • requiring the principal to acknowledge his or her signature before a notary public or other individual authorized by law to take acknowledgments;
  • continuing the requirement that principals must sign "notice" forms, but now with enhanced warnings about the significance of POAs, including the recommendation that "before signing this document, you should seek the advice of an attorney at law to make sure you understand it;"
  • continuing the requirement that agents must sign an acknowledgement of certain responsibilities, now including an obligation to "act in accordance with the principal's reasonable expectations."

Each of these execution requirements, although certainly permitted by ULC's proposal (and perhaps also entirely consistent with the ULC's concern about the potential for financial abuse), is greater than what is required by the Uniform Law on Powers of Attorney. 

At the same time, the Uniform Power of Attorney Act includes potential remedies for abuses of POAs not addressed by old or new law in Pennsylvania, including Section 116 that would grant spouses, parents, descendants and presumptive heirs the right to seek judicial review of an agent's conduct. One open question in Pennsylvania is whether wider standing to challenge suspected abuse is necessary.

One takeaway message from the history of more than 8 years of consideration by states of the Uniform Law on POAs, and more than 3 years of consideration in Pennsylvania about how or whether to adopt some or all of UCL's specific approach, is that achieving uniformity of state civil laws is not an easy task.  That makes me even more appreciative of the effort and comparative "ease" of adoption of early efforts at uniformity, such as the uniform commercial code and the recognition that interstate sales transactions would benefit from consistency.

Portions of Pennsylvania Act 95 of 2014, including the grant of immunity for good faith reliance on POAs by third-parties, are immediately effective, while other portions of the law take effect on January 1, 2015.  The Pennsylvania Elder Law Institute on July 24-25 in Philadelphia will have several sessions addressing the effect of the new law.

ElderLawGuy Jeff Marshall also has a great overview of the new Pennsylvania law on his blog.  Hat tip also goes to Pennsylvania attorney Bob Gerhard for keeping Pennsylvania practitioners up-to-date on the bill numbers and enactment details. 

July 8, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2014

Safeguarding Projects for Older Persons -- on Both Sides of the Atlantic

I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues. 

Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss  practical concerns about elder abuse at the local level.  Bob and I conducted two sessions on Powers of Attorney.Montgomery County Court of Common Pleas Judge Lois Murphy

This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force.  Judge Murphy, right, is also a part of this effort.  A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse.  Pennsylvania Supreme Court Justice Debra ToddGuided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.

Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI).  Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast.   The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors.  CK-speaking-shot-1_7443ae89515d53a077487a41aded4a9cLast winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals.  These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals.  I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year. 

Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks.  I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me. 

June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Pennsylvania Legislature Sends New POA Law Reform Measures to Governor

On June 18, the Pennsylvania House of Representatives approved  House Bill 1429 (Printer's No. 3708), thus sending the long-debated bill's new provisions on Powers of Attorney to the Governor for signing.  If, as anticipated, the bill is signed by the Governor, the new rules would be effective for POAs created on or after January 1, 2015. 

Pennsylvania pracitioners?  That means the Elder Law Institute offered by the Pennsylvania Bar Institute on July 25-26 in Philadelphia will have new relevance to your practice to prepare for the changes.  The opening session of the Institute is the always valuable "Year in Review" by elder law and estate planning specialists Marielle Hazen and Rob Clofine.

A detailed summary of the history and key provisions in H.B. 1429 is provided by Pennsylvania Attorney Neil Hendersthot on his blog. 

June 18, 2014 in Ethical Issues, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2014

What is the Role of the Judiciary in Settlement of Medicare Provider-Fraud Cases?

Last week, the Second Circuit Court of Appeals ruled that a district court's rejection of a proposed Securities and Exchange Commission (SEC) settlement for $285 million -- because of the absence of any admissions by defendant Citigroup -- was improper.  In SEC v. Citigroup Global Markets, a case that arose from investigations into fraud following the financial industries meltdown, the Second Circuit observed that while the court has an obligation to review consent degrees to determine generally the "legality" of the terms and may consider whether the settlement is "fair and reasonable, to demand admissions as a condition of settlement goes too far. 

The Second Circuit said, "It is an abuse of discretion to require, as the district court did here, that the S.E.C. establish the 'truth' of the allegations against a settling party as a condition for approving the consent decrees.... Trials are primarily about the truth. Consent decrees are primarily about pragmatism.... Consent decrees provide parties with a means to manage risk." 

In cases where injunctive relief is part of the settlement, the Second Circuit said the trial court is permitted to analyze the enforceability of the terms, as a matter of "public interest." 

The Wall Street Journal, in reporting on the June 4 decision, observed that the decision "eases pressure" on prosecutors and regulators "to exact admissions of wrongdoing in settlements with companies."

After reading the SEC-related decision, it would seem the same reasoning would govern settlements of federal Medicare and Medicaid fraud suits, including whistleblower cases, such as the multi-million dollar settlements in recent months involving nursing home care, pharmaceutical sales, and hospice, thus explaining how millions in de facto fines often involve no admissions of wrongdoing. 

Or as I sometimes describe such agreements to settle, defendants must decide whether they can live with the financial effect of the monetary terms, and must promise merely to never do again what they say they never did before. 

But I worry, will customers -- which in Medicare and Medicaid cases, usually means seniors and disabled persons -- be the ones who pay the downstream price of the settlement, especially without clear admissions of wrongdoing in the past?  

June 9, 2014 in Ethical Issues, Federal Cases, Federal Statutes/Regulations, Medicaid, Medicare | Permalink | Comments (0) | TrackBack (0)

Sunday, June 1, 2014

Comparative Law Observations from Aging, Law & Society CRN: Aging Human Rights

As Becky Morgan and I reported earlier, the Law & Society Annual Meeting held in Minneapolis from May 29 through June 1, attracted terrifically interesting speakers, both from within and outside the United States. During the Critical Research Network sessions (CRN) on Aging, Law & Society,  I was particularly struck by listening to a trio of speakers from Israel, including Israel (Issi) Doron from the University of Haifa, Michael (Mickey) Schindler from Bar-Ilan University, and Benny Spanier, from Haifa University. 

Issi provided a historical perspective on aging as an international human rights issue, tracking the development of action plans under the auspices of the  United Nations from 1982 in Vienna to 2002 in Madrid. The 2002 outcome document, the  Madrid International Plan of Action on Ageing (MIPAA), expresses the commitment of 160 participating governments, including the United States,  to integrate rights and needs of older persons into national, as well as international, economic and social development policies. However, as Issi pointed out, this is a "soft" document, non-binding in nature.

Thus, the next important step is a Convention or Treaty on aging human rights, a subject of on-going discussions in international circles.  Issi saw a hopeful sign in May 2014 appointment of a new Independent Expert on Human Rights of Older Persons, Rosa Kornfeld-Matte, by the U.N. Human Rights Council.  Rosa Kornfeld-Matte Kornfeld-Matte served as the National Director of the Chilean National Service of Ageing and has a long career as an academic, working for more than 20 years at the Pontificia Unversidad Catolica de Chile, where she founded a program on older people. The role for Ms. Kornfeld-Matte, who has a 3 year appointment, is that of fact-finder, to provide an independent assessment of the critical issues for aging human rights as the basis for international law.  

Micky's presentation focused on the effect of Israel's use -- or relative nonuse -- of legislation adopted in 1966, the "Safety of Protected Persons Law."  He pointed to the potential role of social workers in safeguarding the rights of older adults, and suggesting that the flexibility available to the court to fashion court-enforced solutions to care and safety issues might be a better option than what is available under the more-often used guardianship law.

Benny examined some 226 decisions involving claims by older persons before the European Court of Human Rights, drawn from 2000 to 2010, concluding that although the European Convention on Human Rights does not specifically recognize older adults as having protected right, the cases examined demonstrate that individuals making age-based claims for protection are seeking -- and in some instances finding -- relief before this court.  Benny's analysis of these cases, in a paper co-authored with Issi and Faina Milman-Sivan, also from the University of Haifa, was published in late 2013 in the Journal of Cross Cultural Gerontology.   

Following the first day of presentations and workshops, several of the speakers met for dinner at a local Minneapolis restaurant (Spoonriver, overlooking the Mississippi River -- great spot!), and a number of us were discussing a growing problem for international researchMany of the key journals and periodical publications for aging research are "owned" by publishers who prohibit authors from placing final versions of their papers on open-access research platforms such as SSRN.  The prices charged for individual researchers' access to electronic copies of an article are often prohibitive for academic researchers, who often need and wish to cite to multiple sources. We discussed options, such as whether authors should seek to negotiate for unrestricted  public access after an initial period of fee-paid access.  Others' thoughts on this issue?  

June 1, 2014 in Current Affairs, Discrimination, Ethical Issues, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Law & Society Annual Meeting on "Rethinking Elder Law's Rules & Norms" and More

Law & Society Association's Annual Meeting is always a feast -- with hundreds of presentations and papers, often with cross-discipline themes and presenters.  This year's four day program starts today in Minneapolis.  On tap are three elder law-themed sessions hosted by Aging, Law & Society. The session on "Rethinking Elder Law's Rules & Norms" will  be chaired by Nina Kohn, Syracuse University.

Scheduled paper presentations include:

  • Adult Protective Services and Therapeutic Jurisprudence, by Michael Schindler, Bar-Ilan University;
  • Age, Gender and Lifetime Discrmination against Working Women, by Susan Bisom-Rapp, Thomas Jefferson School of Law and Malcolm Sargeant, Middlesex University Business School;
  • Effective Affective Forecasting in Older Adult Caregiving, by Eve Brank and Lindsey Wylie, University of Nebraska-Lincoln;
  • Sexuality & Incapacity, by Alexander Boni-Saenz, Chicago-Kent College of Law;
  • Beyond the Law: Legal Consciousness in Older Age Care Contexts, by Sue Westwood, Keele University

Nancy Knauer of Temple Law School is chairing the session on "Accessing and Experiencing Jusice in Older Age."  Presentations include:

  • From Vienna to Madrid and Beyond, by Israel Doron, University of Haifa;
  • Lessons from Detroit: Retiree Benefits in the Real World, by Susan Cancelosi, Wayne State University Law School;
  • Older Persons Use of the European Court of Human Rights, by Benny Spanier, Haifa University;
  • Crossing Borders and Barriers: Assessing Older Adults' Access to Legal Advice in the Search for Effective Justice, by Katherine Pearson, Penn State University Dickinson School of Law, Joseph Duffy, Queens University Belfast, and Subhajit Basu, University of Leeds

A workshop on "Ethics of Care and Support in Law and Aging," to be chared by Sue Westwood, Keele University, includes:

  • Aging with a Plan: What You Should Consider in Middle Age to Plan for Caregiving and Your Own Old Age, by  Sharona Hoffman, Case Western Reserve University;
  • An Ethic of Care Critique of the UK Care Bill/Act, by Sarah Webber, University of Bristol;
  • Both Property and Pauper: Slaver, Old Age, and the Inverted Logic of Capitalist Exchange, by Alix Lerner, Princeton University;
  • Responding to Financial Vulnerability: Advances in Gerotchnology as an Alternative to the Substitute Decision Making Model, by Margaret Hall, Thompson Rivers University and Margaret Easton, Simon Fraser University

An international cast of characters, yes?  More soon, with details from the front.

May 29, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Friday, May 23, 2014

International Elder Law and Policy Conference July 10-11 in Chicago

John Marshall Law School and Roosevelt University, both in Chicago, and East China University of Political Science and Law in Shanghai, are jointly sponsoring an International Elder Law and Policy Conference in Chicago on July 10-11.

Keynote speakers include Professor Israel Doron of the University of Haifa in Israel and Dr. Ellinoir Flynn and Professor Gerard Quinn, both from National Unviersity of Ireland, Galway School of Law.

Scheduled panel topics include:

  • Dignity and Rights of the Elderly
  • Elimination of Age Discrimination
  • Caregivers and Surrogate Decision Makers
  • Social Security, Pensions and Other Retirement Financing Approaches
  • Prevention of Elder Abuse
  • Access to Justice

Here's the link to the Registration website.

  •    

May 23, 2014 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Programs/CLEs, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2014

South Carolina Supreme Court Rejects "Vulnerable Adult" Conclusion Based on Age

In Doe v. South Carolina Department of Social Services, the state's Supreme Court analyzes the standards for state intervention to provide involuntary protective services on the grounds the individual is a "vulnerable adult" under South Carolina's statutory authority. In a 3 to 2 decision filed on April 30, 2014, the majority of the court Court concludes:

"Although we believe the family court was well intentioned, we find that it erred in classifying Doe as a vulnerable adult under the Act. Specifically, there was no evidence that Doe's advanced age impaired her ability to adequately provide for her own care and protection. Without this threshold determination, the court erred in ordering Doe to remain in protective custody until the identified protective services were completed."

The dissent finds the majority's reasoning too narrow, pointing to the following facts:

"On July 31, 2012, law enforcement officers went to the home of Doe, then age 86. Doe, suffering from a heart condition, lived alone. Doe refused entry to the officers. The doors and windows to the home were barricaded. The officers noticed a hose running from a neighbor's home through a hole in the roof of Doe's home. This was Doe's only source of water, for water service had been stopped for nonpayment. The inside of the home was, according to the officers, 'in an unsanitary and deplorable condition.' There was mold present as well."

The outcome of the case is influenced by the testimony of a physician, who despite the conditions of the home and the physical infirmities of Doe, observed that she "appeared to have 'the minimum levels of competency to function independently' as there was no evidence of dementia, severe emotional issues, or obvious physical limitations." Doe was apparently either without adequate financial resoures or unable to manage her resources to live more safely in the home, but she firmly rejected the alternative of transfer to another setting.

Although overruling the trial court's conclusion that Doe was a vulnerable adult, the Superme Court also remanded for additional findings of the current status of Doe, who received emergency services in the interim.

Tough facts that demonstrate the challenge of balancing safety for persons at risk of "self neglect" with respect for the autonomy of the individual, a challenge that can arise at any age. Poverty adds to the challenge. 

 

May 20, 2014 in Cognitive Impairment, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, May 19, 2014

Planning for the "Tough" Times

Casey Kasem, Mickey Rooney, Brooke Astor.  High profile, recent examples of tough times for aging individuals.  For lawyers, their histories demonstrate the challenges of planning. Lawyers juggle tough questions about how to handle waning capacity and respect an individual's preferences, while recognizing the probable need for safety and quality care. Add to this the reality that family members are often involved directly and indirectly.  We hope everyone agrees and is well intentioned, but, there are no guarantees. 

Texas Elder Law Attorney Renee Lovelace has a very good article from a few years ago, using another high profile example of the challenges of planning.  She writes about economist and statistician Mollie Orshansky who passed away in 2006 at the age of 91.  Orshanky's name has been in the news again recently because of renewed discussion of the "poverty thresholds" she articulated in the 1960s and which are still used (probably irrationally) as a measurement tool for public benefits. 

In her later years, Orshansky was at the center of a dispute about care that might be in her "best interest" but that also might be inconsistent with her expressed wishes.  In "Working with Elder Clients Who Refuse Help," (Texas Bar Journal, February 2008, available as downloadable PDF from archives), Renee writes:

"But when Ms. Orshansky needed assistance, she rejected help from family. She was hospitalized, and the court, critical of the family for not preventing her decline, appointed a nonfamily guardian. The resulting saga included an interstate guardianship battle, allegations of family kidnapping, a riveting series of Washington Post articles and Senate Committee hearings.  While Mollie's story may be movie-worthy, it is alarming to realize that she did everything that we suggest clients do to plan ahead — and her case still had a disastrous result."

Lovelace identifies several key points to keep in mind when helping clients to plan ahead, including the importance of "the talk" with family members.  She discusses the possibility of building in monitoring options, while also recognizing the potential for even the best intentioned caretaker or agent to make mistakes. She talks realistically about the need for balance between "people, paper and money." 

What are other techniques and approaches -- more than just documents and legal advice -- that seasoned lawyers use to avoid these kinds of disputes?  Feel free to add your "comments."

May 19, 2014 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Thursday, May 1, 2014

New Yorker: Have You Read "Have You Lost Your Mind?"?

In the April 28 issue of The New Yorker magazine, Michael Kinsley offers a great piece, entitled "Have You Lost Your Mind?"  At first I thought the article was just a well written but not very surprising prediction about the looming "tsunami" of aging baby boomers.  Good research, interesting tidbits of medical fact, sharp-edged moments of social commentary and nice touches of humor.  Kinsley writes, for example: 

"I predicted [a few years ago] that the ultimate boomer rat race would be the competition to live the longest.... But, on further reflection, I think I underrated the penultimate boomer competition: competitive cognition.  The rules are simple:  the winner is whoever dies with more of his or her marbles."

But then the article gets serious, and seriously interesting.  The author reveals he was diagnosed twenty years ago with Parkinson's disease (PD) at the age of 43. That's when I, as a reader, noticed that the article was subtitled "Personal History."  For the last twenty years, Kinsley has had time and reason to think about the potential consequences of PD, not just for his body, but his mind.  He thoughtfully explores cognitive defects that can accompany PD, and which can be progressive. 

With facts, anecdotes and his own worry-driven research, Kinsley explains that not all dementias are about loss of memory:  

"[A] difference between Alzheimer's and Parkinson's is that Alzheimer's tends to starts its destruction in the parts of the brain affecting memory, whereas Parkinson's starts with what they call the executive function: analyzing a situation and your options and making a decision."

Ultimately, even though he isn't having any symptoms he can identify as PD-related cognition problems, Kinsley bites the bullet and decides, as he puts it, to have his "brain tested." Bottom line (and, really, his entire article is absolutely worth reading so I'm being unfair in skipping to the bottom line), although he scored exceptionally well on intelligence and "cognitive reserve" (meaning memory), in fact the test identified very real deficits in executive function. 

Now remember, the article is funny and, in many ways, brilliant.  This guy is functioning at a very high level.  But there's a message here, including a possible message for families and lawyers. 

As I read the article, I was remembering a conversation with someone who was asking me about alternatives under the law because he was worried about a family member.  In his explanation, at first he focused on the possibility of a memory problem, then instances of unexplainable mood changes, and then, finally, he gave me specific examples of what could be described as impairments in the loved one's "executive function."    

At what point -- especially if Kinsley and others are right about the looming tsunami of baby boomers with dementia -- do lawyers need to be much more sensitive to and skilled in the subtleties of impaired "executive function?"  Does our tendency to focus on the presence or absence of "memory problems" gloss over the biological explanations for a client's odd gifting decision?  I wonder how many lawyers would think to ask about Parkinson's disease, even if they witnessed a tremor or shake?  Do they therefore fail to ask appropriate questions of the "intelligent" client with the "clear" memory about the reasons for trusting a new "befriender" while becoming estranged from long-standing family or friends? Admittedly, I'm taking Kinsley's analysis one or two steps further.

As he winds to a close in his piece, Kinsley suggests the need for greater appreciation of age-related neurological disorders, observing:  "[W]eaknesses can be overcome, to some extent, by strengths somewhere else.... We are comfortable with the idea that physical health is not just a single number but a multiplicity of factors.  That's where we need to arrive about mental problems.  As we get older, we're all going to lose a few of our marbles."    

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

Wednesday, April 23, 2014

Dementia Diagnosis and the Law

On April 24, I have the good fortune to be working with a neuropsychologist from the neurology department at Penn State Hershey Medical Center in presenting a program on "Dementia Diagnosis and the Law," for a meeting of the Estate Planning Council in York, Pennsylvania.  Professor Claire Flaherty and I have "traded" presentations in the past, with her speaking at the law school and me speaking at the medical school, but this will be our first time presenting together.  We're excited. 

One of the important lessons that I've learned in working with Claire is the clear potential for cognitive impairment to exist without the "usual" symptoms associated with "Alzheimer's."  For example, much of Claire's work is with patients and families coping with early onset dementias.  Because Frontotemporal Dementia or FTD (sometimes also referred to as Frontotemporal Lobar Degeneration or FTLD) can begin to manifest in persons aged 45 to 64 years, the onset may be overlooked or misunderstood. Plus, as Claire reminds me, "FTD is primarily a disease of behavior and language dysfunction, while the hallmark of Alzheimer's Disease is loss of memory."

For legal professionals, including those asked to prepare deed transfers, wills or estate planning documents, the potential for subtle presentations of cognitive impairment can be especially significant.  Making sure the client is oriented as to "time, place and person" may not be enough to address the potential for loss of judgment, thus opening the door for unusual gifts, risky financial decisions or even of adamant rejection of once trusted family members. 

A good place to turn for information about early onset forms of dementia, including FTD, is the Association for Frontotemporal Degeneration or AFTD -- or join us for the York Estate Planning Council meeting this week.  

April 23, 2014 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Sunday, April 20, 2014

Is There an "Age War" Looming?

The title of a piece in the April 2014 issue of AARP Bulletin, "Dispatches from the Battle of the Ages," suggests that we're already in a battle between older and younger people, with the article detailing media reports about battlelines on jobs, funding for federal benefit programs, health care costs, and caregiving obligations. 

"Alarmists use ... statistics to paint a portrait of generational warfare.  But are they mounting that picture in the wrong frame?  To paraphrase a slogan from the 60's peace movement, 'Suppose they gave a generational war and nobody came?'"

The article suggests an interesting resource, Paul Taylor's book (released in March), The Next America. 

"Taylor [executive vice president of special projects at the Pew Research Center in Washington D.C.] and his Pew Colleagues conducted opinion surveys and pored over decades of demographic data.  Yes, there is a palpable anxiety about the lingering recession and long-term problems associated with entitlements, plus the runaway national debt.  Yet Taylor notes this anger transcends age barriers."

At times I do hear a strong resentment among students, both at the college level and in law school, and yet at the same time, I am also impressed by how many students choose to take courses and look for jobs in fields that will serve older adults.  Is there a "war" -- or is it more of a struggle to find firm footing on ground that is ever shifting? 

April 20, 2014 in Books, Current Affairs, Ethical Issues | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

FINRA Arbitration Awards Damages, But Also Attorneys' Fees Under California Elder Abuse Laws

An arbitral award in March 2014 by Financial Industry Regulatory Authority (FINRA) ordered Signator Investors, Inc., a firm aligned with the John Hancock Financial Network, to pay an older couple and their elderly mother's estate $1.2 million for losses arising from failed retirement investments inappropriately marketed to them by a Signator broker. The award to the claimants included "compensatory" damages plus interest, and ordered rescission of all the claimant's investments in Colonial Tidewater Realty Partners.  The award also granted Signator's cross-claim against its former broker, James Robert Glover, for breach of contract, fraud and negligence as potential indemnification on the damage award.

As is true with most arbitration awards, the ruling on Docket No. 13-00579 (available via search at the FINRA website) is "bare bones," providing little in the way of explanation about which legal theories support the outcome. A detailed explanation is unnecessary for FINRA arbitration rulings, which cannot be appealed. 

The claimants, a husband and wife (both 70+) and the husband's mother (who died in 2012 at the age of 103), reportedly invested their entire retirement savings through Glover, who put them into securities not held or offered by Glover's brokerage company.  This practice is sometimes described as "selling away." Signator's defense that Glover's actions were therefore outside the scope of his authority with their company and not subject to their control or responsibility to supervise was implicitly rejected by the FINRA arbitrators.  News reports indicate some 40 other pending complaints connected to Glover's actions. Glover was sanctioned personally by FINRA in March 2013.

FINRA, created in 2007,  is the successor to NASD, the National Association of Securities Dealers, the former enforcement operation for member brokerage firms and exchange markets regulated by the Securities and Exchange Commission.  A single arbitral award of $1+ million through FINRA is interesting by itself.  For example, for the entire year of 2013, FINRA ordered a total of $9.5 million in restitution to harmed investors. 

But what caught my attention was the additional award of $453,970 in attorneys' fees for the claimants against Signator, "pursuant to California elder abuse statutes." The amount of the fees appears to be roughly 40% of the damage award.  Most securities claims are handled by attorneys on a contingency fee arrangement and a fee of 40%  of the award is not unusual in this challenging field.  Thus, even a successful claimant before FINRA may not be made whole, absent a contractual or statutory basis to claim attorneys' fees.  So the award of compensatory damages and interest, plus attorneys fees' is significant. 

Unlike many states, California has a comprehensive provision for attorneys' fees connected to civil actions for abuse of elderly or dependent adults, at Cal. Welfare & Institutions Code Sections 15657-15657.8, including Section 15657.5 providing for attorneys' fees where it is proven by a preponderance of the evidence that a defendant is liable for "financial abuse."   

April 17, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, April 11, 2014

Catch-Up Friday: Furor Over Filial Support, Mutual Responsibility & Related Laws

It is Friday and time for a catch-up on recent law review articles.  I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world.  Here are highlights from recent comments and articles (minus those pesky footnotes):

"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):

"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility." 

"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013): 

"The costs of long term care are staggering  and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."

"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):

"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support.  A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."

In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining.  Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman."  She proposes:

"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."

Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.

April 11, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Hot Topic: "How to Get Older Drivers Off the Road"

Digging out December 2010"How to get older drivers off the road." 

That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.  

But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75.  See "Driving, Aging and Dealing with Family Dynamics."

ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys.   Read "What to Do When Dad Shouldn't Be Driving."   

This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive.  Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers." 

And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach."  Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."

And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself.  Read "New Study on Autonomous Cars."  

April 3, 2014 in Consumer Information, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Professor Jonathan Barry Foreman: Responding to "Longevity Risk"

Prof. Jonathan Barry ForemanUniversity of Oklahoma Professor of Law Jonathan Barry Foreman writes on "Supporting the Oldest Old: The Role of Social Insurance, Pensions, and Financial Products," for the Elder Law Journal in 2014. 

He points to "longevity risk," defined as the risk of outliving one's retirement savings, as "probably the greatest risk facing current and future retirees" in the U.S.   As  several recent studies demonstrate, such as those cited on the Elder Law Prof Blog  here, here and here, many people are not adequately prepared in terms of finances for retirement. 

In responding to this risk, Professor Foreman writes thoughtfully, proposing  systemic alternatives, including expansion of Social Security and SSI for "the oldest old."  Professor Foreman suggests 90 years of age as the starting point for that category.  In addition he proposes greater incentives for public and private employers to promote annuities and other "lifetime income products" as components of employment-based retirement packages. 

He concludes with a warning based on our national history of frequently failing to make significant changes in advance of a predictable crisis:

"Social insurance programs like Social Security, Supplemental Security Income, and Medicaid will certainly need to be expanded. Workers will also need to be encouraged to work longer and save more for their eventual retirements, and both workers and retirees should be encouraged to annuitize more of their retirement savings.

 

While these kinds of solutions seem fairly predictable, the answers to two important policy questions have yet to be decided. First, how much will the government require the oldest old to save earlier in their lives? And second, how much will the government redistribute to benefit the oldest old? Unfortunately, if the history of the Social Security system is any indication, both government mandates and redistribution will be modest, and a significant portion of the oldest old will face their final years with inadequate economic resources."

Reading Professor Foreman's tightly focused paper suggests to me that there is, perhaps, a certain irony to all of this.  The irony is that by not embracing systemic change, Americans are engaging in a form of financial roulette, betting we won't live long enough to care about the outcome of our gamble. 

April 2, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security, Statistics | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Downstream Consequences of Under-the-Table Pay for Elder Care

A few weeks ago, I posted the account of one family's struggle to find competent care for aging parents.  Eventually they were referred to a team of two women who did provide good care, but who insisted on being paid in cash.  I later learned that one person expected an additional "fee" for "managing" the arrangement.  The family felt trapped, although the crisis was cut short when the parent died. 

More recently, I read another family's story, where a non-family member provided proper senior care in exchange for "cash," and this time the arrangement lasted for several years.  Eventually, however, the cared-for-individual's savings were exhausted, and her increasing health needs meant a nursing home was inevitable.  But how to apply for Medicaid?  Any review of bank records that accompanies a Medicaid application would show large, regular cash withdrawals from the elder's accounts, totaling more than two hundred thousand dollars.  With no W-2s or other documentation of the use of that cash, would the state agency treat the transactions as gifts creating ineligibility for Medicaid?  Would an affidavit or testimony by a family member be enough to satisfy the agency?

A group of experienced attorneys brainstormed the options in this fact pattern and raised a host of additional practical questions, including why the family had not sought help from an attorney or accountant at the outset of the arrangement. I suspect part of the answer was the family was operating in "survival" mode -- trying to solve a crisis with temporary help -- and failing to realize the potential for it to become long-term.  In the meantime, their loved one bonded with the individual caregiver who either would not or could not be paid on the books.  One lawyer observed that this fact pattern demonstrates why "Elder Law" needs better visibility and understanding by the public, as elder law attorneys can help prevent this legal nightmare from occurring.

During the brainstorming, someone provided a useful link to "Risks of Hiring Caregivers Under the Table: Why It Can Be Dangerous...." by Melanie Haiken from Caring.com.

For more detailed guidance, IRS Publication 926, the Household Employer's Tax Guide, is remarkably straight forward, if still probably intimidating for the average person. 

March 31, 2014 in Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid | Permalink | Comments (1) | TrackBack (0)