Friday, July 24, 2015
From the ABA Bifocal, details about the 2015 award of a $50k grant by the Huguette Clark Family Fund for Protection of Elders to develop model civil statutes covering elder financial exploitation:
The project will be managed by the National Center for Victims of Crime under the guidance of Executive Director Mai Fernandez. Lori Stiegel of the American Bar Association Commission on Law and Aging will serve as a consultant on the project. Ms. Stiegel, a senior attorney, joined the ABA Commission in 1989 and has developed and directed its work on elder abuse.
“Creating a template of civil statutory provisions for elder financial exploitation is a short- term, innovative project that can have a lasting impact,” Ms. Fernandez said. “It can give attorneys an effective tool for pursuing civil cases and provide victims with the greatest chance to recover stolen assets. We welcome the support of the Huguette Clark Family Fund for Protection of Elders on this important project.”
The news release explains the donor-advised fund was established by the family in 2013 to honor the late Huguette Clark, "who was victimized by her caregivers for more than two decades." Previous recipients of grants from the Huguette Clark Fund include San Diego State University and the Philadelphia Corporation on Aging.
July 24, 2015 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards | Permalink | Comments (0)
Professor James T.R. Jones continues to bring his unique and important perspective to bear in his latest work available on SSRN. In Abuse of Elders with Mental Illness: Generally an International and Specifically a United States Perspective, he highlights the ways in which various types of mental illness may contribute to unique vulnerability to abuse as the individuals age. This is a chapter from a new book, International and Comparative Law on the Rights of Older Persons edited by Ralph Ruebner, Teresa Do and Amy Taylor published by Vandeplas Publishing in May 2015. From the SSRN abstract on Professor Jones' chapter:
Elder abuse is a major international problem, and scandal. It is so important that both the United Nations (“UN”) and the World Health Organization (“WHO”) have focused on it. Elder abuse occurs in a variety of ways. It can be physical abuse due to either active injury or passive neglect. It can be psychological abuse through fear and intimidation. It can be financial abuse due to theft or fraud. Abusers can be strangers; healthcare workers, too often in nursing home settings; and spouses, partners, children, grandchildren, or other relatives. Abusers may be motivated by cruelty, laziness, or greed for quick profit or a premature inheritance.
While all elders can be abused, those with mental illness are particularly vulnerable. This group can encompass both those with longstanding mental illnesses such as major depression, schizophrenia, and bipolar disorder and those psychiatrically debilitated by age, notably including those who suffer from Alzheimer’s disease or other forms of dementia. Victims may be living in private residential settings both alone and with family or friends or in institutions such as nursing homes.
This chapter gives a brief overview of elder abuse and then focuses on the victim population of those vulnerable because of mental illness and how they face abuse. It discusses possible ways to reduce the incidence of abuse of those with psychiatric conditions including, among other things, mandatory abuse reporting and enhanced focus on the problem by government, in particular law enforcement, authorities and primary care and mental health care providers.
The book is another important product from John Marshall Law's summer 2014 forum examining the rights of older persons, leading to the summer' "Chicago Declaration on the Rights of Older Persons" presented before the United Nations' working session on aging.
Thursday, July 23, 2015
As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada. In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.
The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county. Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations.
The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail. Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:
- LasVegasReviewJournal - Editorial-Clark County Adult Guardianship Program Must Better Protect Wards 7/21/15
Wednesday, July 22, 2015
The Law Society of England and Wales recently issued a "Practice Note" for lawyers (or rather, "solicitors") on representing vulnerable clients, including but not limited to clients with dementia. The guideline reflects research that demonstrated "solicitors need to adapt their practices to identify and meet the needs of vulnerable clients." The guide recognizes that "vulnerable" clients may include a range of persons, and may involve physical or mental capacity issues of varying degrees.
The guide warns that failure to "meet the needs of a vulnerable client" may trigger:
- A discrimination claim or a claim for a failure to make reasonable adjustments under the Equality Act 2010, which could result in sanctions including damages.
- A claim for damages or compensation against you or your firm if you act on the instructions of a client lacking capacity to make relevant decisions, having failed to satisfy yourself as to the client's capacity to instruct you or failing to document your assessment of the client's capacity, leaving the validity of the transaction open to challenge.
- A complaint against you to the Legal Ombudsman, which could result in your name being published and/or you having to pay financial compensation. The ombudsman will refer complaints about discrimination to the SRA.
- Reputational risk - your practice's reputation is inextricably linked to the way in which you treat your clients. Conversely, a practice with an inclusive ethos will not only attract a wider group of clients but also a more diverse workforce bringing benefits to the business.
The guide has a detailed discussion of mental capacity issues, including the attorney's need to consider the following four factors:
Tuesday, July 21, 2015
A new book from the U.K. by June Andrews is titled Dementia: The One-Stop Guide, and it offers practical advice for families, professionals, and people living with dementia and Alzheimer's Disease. The Table of Contents suggests the scope:
- What is dementia?
- Getting a diagnosis
- Adjusting to the news: for carers
- Adjusting to the news: for people with dementia
- What are friends for?
- Managing care at home
- Disturbing Behaviours
- Your dementia-friendly home
- What you should expect from the social care system
- What you should expect from the NHS
- The dangers of a hospital admission and how to avoid them
- Some important legal issues
- What to look for in a care home
- Advice on complaints and sample letter
I wonder how Chapters 9 and 10 would be written from a U.S. perspective?
July 21, 2015 in Books, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)
Monday, July 20, 2015
A good piece from the New York Times' Paula Span (and her always relevant New Old Age Blog), HIPAA's Use as Code of Silence Often Misinterprets the Law:
How do people use, misuse or abuse Hipaa, the federal regulations protecting patients’ confidential health information? Let us count the ways:
■ Last month, in a continuing care retirement community in Ithaca, N.Y., Helen Wyvill, 72, noticed that a friend hadn’t shown up for their regular swim. She wasn’t in her apartment, either.
Had she gone to a hospital? Could friends visit or call? Was anyone taking care of the dog? Questions to the staff brought a familiar nonresponse: Nobody could provide any information because of Hipaa.
“The administration says they have to abide by the law, blah, blah,” Ms. Wyvill said. “They won’t even tell you if somebody has died.”
Ms. Span has reported on HIPAA problems before in her column and she tracks attempts to find solutions that balance the needs for privacy with communication that would be helpful.
Another common complaint about Hipaa enforcement, by the way, is the lack of access to patients’ own health records, which they have a right to see or copy, though providers can charge copying fees.
Within families, decisions about how much health information to share, and with whom, often become complicated, as a recent study in JAMA Internal Medicine found. When researchers working to design online patient portals convened two sets of focus groups — one for people over age 75, another for family caregivers — they heard the usual tension between older adults’ need for assistance and their desire for autonomy.
“Seniors say, ‘I don’t want to burden my kids with my medical issues,’ ” said Bradley Crotty, the director of patient portals at Beth Israel Deaconess Medical Center in Boston and the study’s lead author. “And the family is saying, ‘I’m already worried. Not knowing is the burden.’ ”
My thanks to my colleague Professor Laurel Terry for sharing this piece.
Marquette Law Professor Paul Secunda always has interesting perspectives, and that is again true with his recent article, The Behavioral Economic Case for Paternalistic Workplace Retirement Plans, to be published in an upcoming issue of the Indiana Law Journal. From his SSRN abstract:
Dependence on 401(k) retirement accounts continues to cause a massive retirement crisis in the United States by leaving most workers unprepared for retirement. The voluntary, inaccessible, employer-centered, expensive, and consumer-driven nature of these plans has combined to make retirement a type of corporate-inspired elder abuse in America.
Behavioral economics considers the utility of permitting individual choice in decision-making settings. Many, however, have been misled to believe that more choice is always better. Yet, according to one prominent commentator, this consumer-driven paradigm will lead to forty-eight percent of current workers between the ages of fifty and sixty-four being poor when they reach retirement. Behavioral economic workplace research instead strongly suggests that a better approach would be to use “choice architecture” to nudge workers into well-diversified, low-fee default retirement accounts set up by government-regulated private retirement funds.
Such a successful paternalistic workplace retirement model already exists. The Australian Superannuation Guarantee is a mandatory, universal, private, and comparatively inexpensive workplace retirement scheme. It also aligns the interests of retirement fund managers with fund participants. Most Australian employees do not exercise choice with regard to how their retirement contributions are invested. Employer contributions default into an individual’s MySuper retirement account operated by the country’s best money managers, who invest worker funds in a diversified manner, while charging very low investment fees.
As part of my Stewart Lecture remarks, I outline here a vision for the transformation of the American 401(k) retirement system into an efficient and sustainable superannuation model based on behavioral economic insights from the Australian workplace retirement system.
Friday, July 17, 2015
On July 7, 2015, in U.S. ex rel Hartpence v. Kinetic Concepts, Inc., the Ninth Circuit, sitting en banc, created an easier path for whistleblowers to recovery under the False Claims Act for disclosure of fraudulent claims for Medicare reimbursement. From its introduction to the ruling in consolidated civil qui tam suits:
If a whistleblower informs the government that it has been bilked by a provider of goods and services, and that scheme is unmasked to the public, under what conditions can that same whistleblower recover part of what the guilty provider is forced to reimburse the government? We hold today that there are two, and only two, requirements in order for a whistleblower to be an “original source” who may recover under the False Claims Act: (1) Before filing his action, the whistleblower must voluntarily inform the government of the facts which underlie the allegations of his complaint; and (2) he must have direct and independent knowledge of the allegations underlying his complaint. Abrogating our earlier precedent, we conclude that it does not matter whether he also played a role in the public disclosure of the allegations that are part of his suit. We also hold that the district court erred in its application of the rule that a whistleblower must be the first to file an action seeking reimbursement on behalf of the government based on the fraudulent scheme.
According to one lawyer interviewed here, the impact of the decision to reverse 25-year old case precedent, though important, may be limited to older cases, "since 2010 amendments to the False Claims Act have further clarified the 'original source' requirements.
Additional history -- and predicting clarifications -- about the public disclosure provisions of the False Claims Act comes from Albany Law Emeritus Professor Beverly Cohen, in an article from Mercer Law Review, titled "Trouble at the Source: The Debates Over the Public Disclosure Provisions of the False Claims Act's Original Source Rule." For more, see Professor Cohen's interesting article (in my own law school's law review, I was happy to discover!), "Kaboom! The Explosion of Qui Tam False Claims Under the Health Reform Law."
Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Wednesday, July 15, 2015
Community Legal Services of Philadelphia (CLS) recently issued an important report, examining statistics on complaints and enforcement actions under the purview of Pennsylvania's Department of Health, the chief regulatory body for nursing homes. To put it bluntly, the regulators are getting a failing grade here, with a new Governor (and an uncooperative Legislature on funding issues) facing the need for action. From the executive summary:
The Pennsylvania Department of Health (DOH) has been failing to protect elderly and disabled nursing home residents. Community Legal Services of Philadelphia (CLS) regularly advocates on behalf of nursing home residents, representing them in matters relating to the preservation and protection of their rights. Over the past several years, under the previous governor’s administration, CLS has witnessed DOH significantly decrease its enforcement of nursing home regulations and patient protections. In an analysis of DOH nursing home investigations and inspections that occurred in Philadelphia from 2012-2014, CLS has found that DOH’s conduct has put elderly and disabled Pennsylvanians at risk of physical harm or death.
During this time period, DOH dismissed an extraordinary number of complaints against nursing homes, failed to properly follow up when a violation was found, mischaracterized harm against patients, and dramatically decreased its penalties against nursing homes. Unfortunately, DOH’s failures have not only placed residents at risk, but they have also resulted in inaccurate publicly available information that forces potential residents and their families to make major life decisions without all of the important facts. Pennsylvania must fix this crisis and ensure the safety of elderly and disabled nursing home residents.
The CLS authors make recommendations for change, including a commitment to "better transparency to the public regarding investigations and characterization of harm."
Monday, July 13, 2015
McKnight's News has an interesting essay reporting on the potential significance of a research project underway in Kansas:
In 2002, Kansas created a pay-for-performance Medicaid program designed to improve residents' lives. Starting this month, the Center for Applied Research at LeadingAge and Kansas State University will delve into statistical evaluation of whether the program has helped resident health, resident quality of life and employee job satisfaction. The $149,776 grant was awarded by the Retirement Research Foundation.
The 18-month CFAR project will be one of a few large-scale analyses of the potential benefits of adopting culture change. Smaller-scale studies have shown, modestly, that resident quality of life improves with culture change, and larger studies have suggested some positive outcomes related to a decrease in physical restraints and feeding tubes, says researcher Linda Hermer, Ph.D.
“I am hoping one of the things we will be able to tell, with finer precision, is to be able to understand whether there are truly benefits from culture change to a resident's health and quality of life,” she told McKnight's.
Friday, July 10, 2015
Louisiana Governor Bobby Jindal, one of (now many) candidates for the Republican nomination for President, has been making a fair amount of press of late, for his positions on so-called medical marijuana, Common Core education standards, and how his state will handle same-sex marriage. Lower on the radar screen, however, was his signing of Act 260, an interesting package of legal changes affecting obligations between various family members.
One of these changes was to adopt a new provision affecting the obligations of "ascendants and descendants" to provide "basic necessities of life" for family members "in need." In other words, filial support.
Louisiana already had a provision, Section 229, providing that "children are bound to maintain their father and mother and other ascendants who are in need." The new provision continues this statutory obligation, but makes enforcement "personal" only. The substitute provision was signed into law on June 29 and becomes effective on January 1, 2016. New Article 237 of Act 260 provides:
Descendants are bound to provide the basic necessities of life to their ascendants who are in need, upon proof of inability to obtain these necessities by other means or from other sources, and ascendants are likewise bound to provide for their needy descendants, this obligation being reciprocal.
This obligation is strictly personal and is limited to the basic necessities of food, clothing, shelter, and health care.
This obligation is owed by descendants and ascendants in the order of their degree of relationship to the obligee and is joint and divisible among obligors. Nevertheless, if the obligee is married, the obligation of support owed by his descendants and ascendants is secondary to the obligation owed by his spouse.
Official comments explaining the revisions emphasize that the necessities obligation kicks in only when the needy family member is unable to obtain necessities "by other means" or from "other sources," thus signaling any filial support obligation is secondary to the individual's eligibility for public assistance or other welfare benefits. Further "for the first time" Louisiana law "provides a ranking of those descendants and ascendants who owe this reciprocal, lifetime obligation."
The commentary explains that the revision makes the obligation "strictly personal," and there it precludes enforcement by "a third person." Thus, it would appear that unlike in Pennsylvania (or Germany?) nursing homes and the state may not use these statutes in order to sue family members to collect necessities for indigent elders.
According to the comments, the obligation is also not "heritable." This appears to reflect a Louisiana Court of Appeals decision from 2010, In re Succession of Elie,denying a mother's claims for funds from a deceased son's estate brought under former Section 229.
Tuesday, July 7, 2015
Many have written with great sensitivity and candor about attending the death of a loved one, including a parent. Ellen Goodman had a lovely op-ed recently, How to Talk About Dying, in the New York Times. But more important even than her personal journey with her own parents, was how she and others have used their mutual experiences and concerns to start The Conversation Project.
As background, Ms. Goodman writes:
When my mother died from heart failure and dementia, I began to talk with others. It was extraordinary. Everyone seemed to have a piercing memory of a good death or a hard death. Some of these stories had been kept below the surface for decades, and yet were as deep and vivid as if they’d just happened.
Too many people we love had not died in the way they would choose. Too many survivors were left feeling depressed, guilty, uncertain whether they’d done the right thing.
With these experiences in common, Ms. Goodman and others established a nonprofit and a website, and they offer a "Conversation Starter Kit" for how to begin -- and continue -- thinking about what you want and how to share personal values and choices with family members. The kit is free, downloadable, and you can take notes and tailor the plan easily.
Many of my own friends and working colleagues have stories to share about "end of life" decisions with their parents. (Perhaps because I teach and write about aging, I get more than the average number of opportunities to hear from a lot of people about how well things are going on the homefront....) It seems like a "conversation about the conversation," shared among friendship groups, or workout-groups, or workplace groups, might facilitate using the starter kit and working on the more personal family conversations.
Thanks to Professor Laurel Terry for sharing these links!
Friday, July 3, 2015
On July 1, 2015, Pennsylvania's Attorney General filed a complaint in the Commonwealth Court against Golden Gate National Senior Care LLC (GGNSC) which manages and operates Golden Living Centers nationally. The AG's suit focuses on 14 facilities in Pennsylvania. From the AG's press statement:
The legal action asserts Golden Living violated the Unfair Trade Practices and Consumer Protection Law by deceiving consumers through its marketing practices.
The company advertised it would keep its residents clean and comfortable while providing food and water at any time. But its facilities were understaffed, leaving residents thirsty, hungry, dirty, unkempt and sometimes unable to summon anyone to help meet their most basic needs, such as going to the bathroom, the legal action asserts.
According to the AG's office, evidence comes from residents' family members and former employees of Golden Living, including certified nursing assistants. The allegations focus on an alleged "widespread pattern of understaffing and omitted care."
Further, the AG makes the following specific allegations:
- Continent residents left in diapers because they were unable to obtain assistance going to the bathroom.
- Incontinent residents left in soiled diapers, in their own feces or urine, for extended periods of time.
- Residents at risk for bedsores from not being turned every two hours as required.
- Residents not receiving range of motion exercises.
- Residents not receiving showers or other hygiene services as required.
- Residents being woken at 5 a.m. or earlier to be washed and dressed for the day.
- Residents not being timely dressed in order to attend their meals.
- Residents not being escorted to the dining hall and sometimes missing meals entirely.
- Long waits for responses to call bells or no responses at all.
- Staff, under the direction of management or fear of management, falsifying records to indicate residents received services when in fact they did not.
- Improved staffing when state inspections occurred, leading to deceit about the true conditions at the facility.
- The investigation also included a review of staffing levels self-reported by Golden Living facilities and deficiencies cited in surveys conducted by the state Department of Health.
According to one news source, Golden Living responded to the suit with a statement expressing the company's confidence that the "claims made by the Attorney General are baseless and wholly without merit," and further alleging the suit is the "unfortunate result of Kathleen Kane's inappropriate and questionable relationship with a Washington D.C.-based plaintiff's firm that preys on legitimate businesses and is paid by contingency fees." (For those of you not privy to the local news on Pennsylvania politics generally and AG Kathleen Kane specifically, I think it is fair to say that the press frequently refers to her as the "embattled AG." She first took office in January 2013).
The Pennsylvania AG's suit comes on the heels of a broader report released in June by Community Legal Services of Philadelphia, asserting that from 2012 through 2014 the Pennsylvania Department of Health under former Governor Corbett's administration, failed significantly to conduct proper investigation of complaints about a large number of nursing homes (not limited to Golden Living) and failed to enforce existing regulations designed to protect residents.
For Golden Living, allegations are not limited to Pennsylvania. For example, in June 2015, claims about chronic understaffing of 12 Golden Living Center nursing homes in Arkansas were certified to be litigated as a class action.
Hat tip to Douglas Roeder, Esq., for bringing the latest Pennsylvania AG's suit to my attention. Last month I reported on the A.G.'s suit for unfair trade practices filed against a law firm that was alleged to be improperly using Pennsylvania's filial support law as a basis for collection demands against family members of the debtor.
July 3, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, July 2, 2015
Imagine this fact pattern: You are a young professional, just getting your career started (still making payments on college and graduate degree loans, and only dreaming of the day you could make a down payment on a house). You receive an official-looking letter. The letter advises that under another state’s law, you may have a statutory duty to pay monthly “financial support” for a father who is unable to support himself, following a stroke that has put him in a public nursing home. Fairly stunning news, yes?
Now imagine that the father in question is someone you have seen only a handful of times since the age of about 10, when he and your mother divorced. The custody case that took place in the father’s home state was a tough one. Review of the evidence shows the father was either unable or unwilling to provide support for the family while they were together. Your father borrowed money from your mother’s family. He was manipulative, even to the point that he once kidnapped you as a young child and held you away from your mother. Ultimately, the court in that other state agreed that your mother should have sole custody. Your father never paid alimony to your mother or support for you as a child. Those college degrees were earned without your father’s support of any kind.
Tough to believe that authorities in the other state could possibly believe, even if they work in one of the few U.S. states that occasionally enforce claims made by nursing homes for filial support, that any support or maintenance award under these circumstances would be “fair.”
Add one additional complexity. Admittedly, it is a big one. The “state” requesting monthly payments is not next door to where you live, or even in the same country. It is across the Atlantic. The state is Germany. And you gave up your citizenship as a German long ago.
I have been given permission to write about this set of facts by the American adult child in question. Perhaps this post may generate additional legal assistance from someone with experience in a cross-border claim. These are the facts as I understand them.
Germany has its own version of what I call a "filial support" law, although it is far broader than Pennsylvania's controversial law. The German Civil Code at Sections 1601-1615, provides that when a person is "incapable" of maintaining himself, "lineal relatives are under an obligation to maintain" the individual. If one family member in the line of descent cannot pay in whole or part, the claim goes to the next.
The amount of any maintenance obligation is usually set according to the family member's "ability to pay," with a court having the power to decide what amount that might be if a request is not paid voluntarily. In their first letter, the German authorities warn that failure to cooperate can be a criminal offense; in a second letter, they seek records of annual earnings, but only certain expenses (rent, insurance and student debt), from the American.
Wednesday, July 1, 2015
From the June 22 issue of The New Yorker magazine, an interesting, thorough -- and ultimately devastating -- account of recent developments in "death with dignity" movements around the world. The article introduced me to Wim Distelmans, described as "an oncologist and professor of palliative medicine at Free University of Brussels," and "recognized as a leading proponent" of a 2002 Belgium law "that permits euthanasia for patients who have an incurable illness that causes them unbearable physical or mental suffering."
In The Death Treatment, author Rachel Aviv uses the diary-based history of a 60+ year-old woman who struggled with depression, eventually losing her levensperspectief, a Dutch word "that refers to the sense that there is something to live for," to illuminate questions about the scope of any appropriate limits on self-directed death. The article makes clear that "lawful" self-directed death can have long-range consequences for surviving family members, drawing upon a son's challenge to permissible euthanasia in Belgium as the evidence. A very worthwhile, but not easy, read.
Tuesday, June 30, 2015
On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients. In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man. It was alleged she used client funds to pay office, payroll and personal expenses.
The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August. According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.
Monday, June 29, 2015
California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional
On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR). Lots of interesting and important issues here, including:
- the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
- the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8, is unconstitutional, both facially and as applied;
- the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.
The 44 page opinion concludes:
"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.... The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death. A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."
Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen, who brought the action on behalf of CNHR and several nursing home residents. Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.
June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink
Sunday, June 28, 2015
In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care. The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both. Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.
The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards. The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:
In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.
Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony.
As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.
In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues. For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.
Friday, June 26, 2015
Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages -- and recognize them as valid marriages -- for same sex couples. Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.
UPDATE: in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile. For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging.