Monday, February 23, 2015

Moments of Lucidity vs. Mental Capacity

On Saturday, I had the privilege of attending the 7th Annual Conference of the Pennsylvania  Association of Elder Law Attorneys (PAELA), to give a presentation with Dr. Claire Flaherty, a Penn State Hershey Medical Center neuropsychologist with special expertise in frontal and temporal lobe impairments, on "Dementia Diagnosis and the Law."  February Snow 2015

Another speaker, Teepa Snow, an occupational therapist with long-experience in behavioral health, brain injury and dementia care, spoke on Sunday. 

It was one of the rare times when I've been glad to be "snowed in" at a conference, as that kept me in place for both days of the presentations, rather than rushing home to work on some other task. 

One of the topics that was discussed by attendees over the two days was the question of whether testimony by witnesses who observe "moments of lucidity" -- standing alone -- is proper support for a finding of "legal capacity." Context is important, of course, as both common law and statutory law increasingly recognize that capacity should be evaluated in terms of specific transactions. 

My own takeaway from the health care experts was the need for some measure of caution in this regard.  With many forms of dementia, especially at the early stages, unrecognized impairment of judgment may precede recognized impairment of memory.  In other words, as I understand it, we may spend too much time being impressed by a client's ability to remember who is the president or the names of their children, and too little time asking more probing questions.  Deeper inquiry may reveal or ameliorate concerns about judgment, including an individual's current abilities to make decisions, make reasonable, rational connections in formulating or following a plan, and related skills such as empathy or self-awareness.

Along this same line, it is a good time to remind readers that there are three useful handbooks on "Assessment of Older Adults With Diminished Capacity," one directed to lawyers, one to psychologists, and one for judges, that were created by experienced professionals working as a team on behalf of the American Bar Association and the American Psychological Association (APA).  Individual copies can be downloaded without cost from the APA website.  

February 23, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Science | Permalink | Comments (0) | TrackBack (0)

Monday, February 16, 2015

Do "Elder Law" Attorneys Have Regrets at the End of Their Careers?

ABA's Litigation magazine's Winter 2015 issue has an interesting theme -- "regrets" -- and I encourage all attorneys and law professors to track it down.  Lots of gems here, offering plenty of stimulus for conversation.

Famed trial attorney Gerry Spence starts off one of the articles in this way:

"Like most old men looking back, I tend to forget the major regrets in my life.  Mine may been becoming a trial lawyer in the first place.  I learned how to try case by failing.  I regret I wasn't taught in law school the first rudimentary principles of a jury trial.  But how could that happen when most of the professors had never been in a courtroom?....

Spence continues:

"In short, the justice system is broken....  I've labored in the system for over 60 years, and I regret, not winning, but in contributing to the myth that there's liberty and justice for all. I regret aiding and abetting the 'appearance of justice' that continues to defraud most Americans who have never awakened one day to find themselves crunched in the system...."

Abe Krash, with a 50 year career at D.C.'s Arnold & Porter law firm, shares his thoughts, thoughts that are on the whole, more positive that Spence's, but include:

"The bloom on the Washington legal rose began to fade somewhat in the mid-1980s during the era of deregulation.  At about the same time, the legal profession began to change in significant ways.  I applaud a number of the changes... such as the widening opportunities afforded to women and minorities.  But like many others of my generation, I regret some of the changes, including the shift among large law firms from a partnership mode to a corporate mode."

Elder Law, which as a specialization is still relatively young, is now "old enough" to see a first generation of long-time practitioners contemplating their own retirements. I wonder how the theme of "regrets" might play out for these individuals?  

Comments can be posted anonymously (and we screen for appropriate language, etc.). 

February 16, 2015 in Ethical Issues, Legal Practice/Practice Management, Retirement | Permalink | Comments (0) | TrackBack (0)

Monday, February 9, 2015

Why Law Students Should Know About Long-Term Care Insurance...

Recently Elder Law Attorney Bob Anderson from Marquette, Michigan, spoke to law students at Dickinson Law on the theme of "planning" and his presentation stressed the importance of understanding long-term care insurance or, because our world loves acronyms, "LTCI."  Robert Anderson, Esq., Marquette Michigan

Bob used his thirty years of experience in counseling families to outline key points, and to explain factors that have impacted the LTCI industry.  I asked the students to summarize what they found to be most interesting and important.  Their "takeaway" highlights included:

  • LTCI is an important consideration, part of the same evaluation for insuring against "unacceptable" losses, that should take place in deciding whether to insure against home fires or early death, recognizing that such events are "unlikely" to happen, but can happen to a significant percentage of the population;
  • LTCI has a "cost of waiting," both in terms of the potential to become "uninsurable" because of a disqualifying medical condition arising, and because of the cost increase in first time premiums as you get closer to the age of potential need; and
  • The cost of LTCI has several important variables, which lawyers can help families understand when advising about planning options, including the term of coverage (e.g., 1, 3 or 5 years), the "elimination" period, the interaction with Medicare's 100 day maximum for post-acute care, and the need to consider inflation protection for the daily benefit.

Bob also talked about "hybrid" insurance products, combining life insurance with an LTCI option. I think it is safe to say that regardless of their goals after graduation, all of the law students came away with an appreciation for the need to understand all available options, including LTCI, in planning or advising for post-retirement needs. 

One of our students, who is thinking about general practice, said that he can see clients asking questions about LTCI.  Bob was excellent at reminding all of us that effective elder law and estate planning attorneys address more than just what happens after death. 

Bob, whose diverse interests include cross-country ski racing and hockey, also provided a bit of surprise during his visit when he began speaking Russian -- and, I think, Ukrainian -- with our Russian and Ukrainian Law expert, Bill Butler.

We especially appreciate Pennsylvania elder law attorney Amos Goodall and the National Elder Law Foundation (NELF) for their roles in making this interactive program possible; the recording will be available to practitioners in the future through NELF's educational arm. Amos also addressed our students, adding important Pennsylvania specifics to the discussion.

In a timely coincidence, AARP has a newly published Money Column, on "Should I Buy Long-Term Care Insurance?" 

February 9, 2015 in Consumer Information, Health Care/Long Term Care, Legal Practice/Practice Management, Medicare, Programs/CLEs, Retirement | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

D.C. Bar Addresses "Breaking the Silence on Elder Abuse"

The Washington D.C. Bar has a feature article on elder abuse in February issue of its Washington Lawyer.  It begins with a comparison of Brooke Astor's history to a "quiet" case of exploitation in the District:

"The issue of elder abuse made front-page news in 2009 when famed philanthropist Brooke Astor’s son, Anthony Marshall, was convicted on 14 of 16 counts for financially exploiting his mother, stealing millions of dollars from her. A few years earlier in the District of Columbia, a similar case played out on a much smaller scale and away from the media glare.

 

D.C. resident Hattie Mae Goode was a housekeeper who, along with her husband, had scrimped and saved, bought a house (in which she took great pride), and wanted to be independent in her elder years. Several years after her husband died, Goode was introduced to Reginald Rogers by a mutual friend. Rogers, a lawyer, soon became indispensable to Goode, taking her to doctor appointments, to the bank, and eventually obtaining power of attorney over her.

 

'She trusted him to take care of her and her financial affairs, which turned out to be a very bad idea. He just cleaned her out,' says Goode’s niece Alma Robinson, who is executive director of the California Lawyers for the Arts. 'It was such a horrible story. This widow by herself with nobody looking after her, and then he convinces her that her family is trying to take advantage of her,' Robinson says. Cases such as Goode’s and Astor’s are all too common, say experts, yet the issue of elder abuse often goes unnoticed."

While much of the article sounds familiar, in terms of the recitation of predicted numbers of victims and the sad facts uncovered in actual investigations, the article also points to an interesting "new  project" launched in October, the "District's Collaborative Training and Response to Older Victims," or DC TROV.  For more on this new team approach, read "Breaking the  Silence on Elder Abuse," by Kathryn Alfisi. 

February 6, 2015 in Elder Abuse/Guardianship/Conservatorship, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Thursday, February 5, 2015

Good Advice for All Professionals about Empathy

Eleanor Feldman Barbera, a long-term care psychologist, writing for professionals in long-term care settings, offers wise advice that is relevant  for any professional, about the importance of empathy and validation in addressing client concerns.  She begins:

"As a long-term care psychologist, one of my main tasks is to sit down and talk in-depth with residents on a regular basis. I've basically conducted 20 years of focus groups. The single most common comment I've heard from residents over the years: 'I never thought I would end up in a place like this.'

 

While it's probably not the case for people who entered swanky continuing care retirement communities of their own accord well in advance of a health crisis, many residents feel like it's a personal failure to be in long-term care. They think if they'd done something different, or earned more money, or if they'd had children, or had a better relationship with their children, or if they had better children, or something, then they wouldn't have 'ended up' in a long-term care home."

For her specific advice, read "Addressing Residents' Deepest Fears," from McKnight's Long-term Care News.

February 5, 2015 in Health Care/Long Term Care, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 27, 2015

The Importance of Checks & Balances in Law Firm Management, Including Handling Of Elder Client Funds

A news release from the U.S. Attorney's Office in Western Virginia provides an important reminder of the importance for every lawyer of having a system of checks and balances for law office management, to prevent any single employee from having unsupervised access or exclusive control over client trust funds.  On December 15, 2014, a 34-year-old legal assistant at a law firm in Virginia was sentenced to 24 months in federal prison for stealing more than $183k from an elderly client of the law firm.  The lawyer who employed that assistant had been named by the county to serve as the conservator for the elderly woman who became the victim.  According to the news release, the attorney "allowed [the legal assistant] to access the elderly woman's bank accounts,...but [the assistant] did not have signature authority on the accounts."

According to the news release, the employer "to date... has repaid $104,990.15." One suspects the law firm (or, its insurer) will have to pay the whole tab, even though the sentencing order imposes an obligation of restitution for the full sum on the legal assistant. 

January 27, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Friday, January 23, 2015

Oregon's Law That Mandates "Elder Abuse Reporting" by Lawyers Now in Effect

As outlined in the Bar Counsel column of the January issue of the Oregon State Bar Bulletin, on January 1, 2015, lawyers became mandated reporters of suspected elder abuse, including physical abuse, neglect, verbal abuse, sexual abuse, and financial exploitation.  Deputy General Counsel Amber Hollister for the Oregon State Bar explains:

"Lawyers across Oregon are talking about elder abuse reporting.  On Jan. 1, 2015, legislation took effect making all Oregon lawyers mandatory reporters of elder abuse.  HB 2205 (2013).  As with any new law, there are still many questions about how the new requirements will apply and impact lawyers' day-to-day practice....

 

The new reporting requirement was enacted at the recommendation of the Oregon Elder Abuse Prevention Work Group, which was tasked with studying how to better protect older Oregonians.  As state Rep. Val Hoyle notes, 'for four years, the work group has focused on protecting some of Oregon's most vulnerable citizens.  Integrating lawyers into Oregon's elder abuse safety net as mandatory reporters will provide our state with 19,000 additional advocates.'"

January 23, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Thinking More Deeply About Treating Nonlawyers Who Offer Medicaid and Estate Planning as Engaging in UPL

Earlier this week, we reported on the Florida Supreme Court's recent Advisory Opinion regarding activities by nonlawyers in "Medicaid Planning" that will be treated as Unlicensed Practice of Law (UPL). 

That piece triggered several discussions with colleagues, and thus we have more information to share. 

Stanford Law Professor Deborah Rhode, working with Lucy Buford Ricca, the Executive Director of Stanford's Center on the Legal Profession, has a relatively new article in Fordham Law Review's annual colloquium issue that deepens Rhodes' long-standing concerns about the potential impact of treating certain "nonlawyer" conduct as sanctionable under state UPL rules. In "Protecting the Professor or the Public? Rethinking Unauthorized-Practice Enforcement," Professor Rhode begins with the history behind her earliest examination of the utility of "do it yourself kits" in areas of underserved legal needs, such as divorce.  In her most recent Fordham piece, she also builds upon her 1981 survey of UPL enforcement procedures across the 50 states, by making a close examination of over 100 reported UPL decisions issued in the last decade.  Rhode and Ricca conclude that UPL enforcement needs to be more consumer-oriented and less driven by narrow interests of lawyers in protection of specialized practice. They advocate that a "more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar." Their article is a must read for any Bar group considering UPL issues, including those arising in the elder law or estate planning context.

Along that same line, the American Bar Association is hosting its second "UPL School" in Chicago on April 17-18.  The purpose is to provide "a central forum for volunteer members of state and local bar UPL committees and commissions, and those charged with the prevention and prosecution of UPL violations to discuss current UPL challenges." (The first such "ABA UPL School" was held in 2013, focusing on several areas including immigration, "notario" fraud, and mortgage relief or loan modification vendors.)

January 20, 2015 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Florida Supreme Court Advises on "Medicaid Planning" by Nonlawyers as "Unlicensed Practice of Law'

Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions. Florida Supreme Court

The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process. 

The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.

In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:

Continue reading

January 18, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Medicaid, State Cases | Permalink | Comments (1) | TrackBack (0)

Monday, January 12, 2015

"Broad POA Form" + Theft by Agent = Potential Liability for Lawyer? Maybe...

We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing.  The Minnesota Court of Appeals set up the fact pattern as follows:

"The attorney is asked to draft a power of attorney for his elderly client.  The document is drafted by a secretary.  The lawyer never meets the client.  Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client.  The document allows the attorney-in-fact to transfer all of the client's assets to himself.  Days after the [elderly uncle] signs the document, that is precisely what happens." 

The nephew used the POA to drain the uncle's accounts of more than $227,000.

Was the nephew liable for conversion?  By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone. 

The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form."  The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.

Continue reading

January 12, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

Planning Ahead for 2016: Attorneys as Mandatory Reporters of Suspected Abuse?

With the 2015 AALS Annual Meeting in our rear-view mirror, we can begin thinking about programming for January 6-9, 2016 in New York City! Whew!  No rest... no rest....

The new officers for the Aging and the Law Section include Chair-Elect Nina Kohn, Syracuse Law, Secretary Roberta Flowers, Stetson Law, and Treasurer Jack Sahl, University of Akron Law.   Mark Bauer, Stetson, as outgoing chair will continue on the executive committee.  If other law professors reading this blog would like to volunteer to be on the planning committee for January 2016, that would be great too.  Just email one of us to let us know!

The preliminary plans are to work on a joint program with a professional responsibility focus, looking at emerging potential roles for attorneys to protect older adults from abuse or neglect, including consideration of whether attorneys are -- or should be -- "mandated" reporters of suspected abuse of adults.  A mandatory reporting obligation, already a fact of life for some professionals, including social workers in certain contexts and attorneys in some states, raises important questions of client identity, autonomy, confidentiality, and conflicts of interest, just to name a few concerns.  Let us know if you have a work in progress -- or additional thoughts -- along this line.      

January 6, 2015 in Crimes, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Maryland Court of Appeals Confirms Disbarment of "Elder Law" Attorney

On December 23, 2014, the Maryland Court of Appeals issued a detailed opinion explaining the disbarment of Attorney Michael C. Hodes, in proceedings initiated by the state's Attorney Grievance Commission. Hodes, an attorney with 39 years of experience, reportedly held himself out as concentrating his practice in estate planning and elder law. At the core of the charges against Hodes was "self-dealing," by improperly using money from a specific decedent's account and over $270,00 from a related trust account for his own needs.  He attempted to avoid disbarment, arguing that the sums should be characterized as a loan, that he had made restitution and his alleged misconduct was not in his role as an "attorney."

The Court concluded, however, that an attorney can be disciplined for violations of Rules of Professional Conduct, including conflict of interest, arising from conduct as an agent and trustee for an irrevocable trust created from assets from a decedent's estate, even if the attorney had been acting in a personal or non-legal capacity. 

Hodes argued as mitigation that he had an established reputation as a trustworthy and knowledgeable attorney, with no prior history of disciplinary sanctions, and pointed to his roles as an adjunct professor at two area law schools and his role as a regular commentator on "elder law" for the radio.  The court was unpersuaded, observing, "Yet, with all of his knowledge and experience in the practice areas of elder law and estates and trusts, Respondent displayed a remarkable lack of insight into his professional responsibility as an attorney and fiduciary. He continued to insist that he had taken a 'loan' of $270,000.00 from the Trust in order to pay personal bills, as if this form of self-dealing was acceptable."

The Maryland Court of Appeals also rejected Hodes' argument that the sanction of disbarment was excessive, as compared to prior disciplinary cases. The Court noted that to the extent the cases could be cited as permitting leniency for intentional misconduct, they "are no longer part of our modern attorney discipline jurisprudence."

For more, see here (Baltimore Business Journal), describing Michael Hodes' future plans. 

December 31, 2014 in Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management | Permalink | TrackBack (0)

Wednesday, December 24, 2014

With the Hiatus in "Serial" Podcasts, How to Keep Your Listening Ears Happy?

Okay, I will admit to being one of the addicts for the podcast "Serial" episodes.  If you haven't listened yet, the first season tracked an investigaton of a criminal case, posing the question of whether a young man who was convicted as a teenager of murdering his former girlfriend might be entitled to post-conviction relief.  Listening to the well-crafted episodes and compelling voices of the defendant and other individuals connected the Baltimore events has been a great way to rest my semester-weary eyes, while still considering important questions of law, ethics, justice, professional obligations of attorneys, race, and ethnicity.  

But the last episode for 2014 is now behind us.  What to listen to now? Especially while we actually have some down time between semesters-- and might need a break from our own families!?  

Well, here is another interesting option --  Life of the Law, a bi-weekly "sound rich" podcast series exploring cutting edge topics.   The episode on "New Frontiers of Family Law" immediately gave me a new term - polyamorous relationships -- and surprising new things to think about for my course on Wills, Trusts & Estates.  The episodes vary in length, some nicely as short as 15 minutes.

December 24, 2014 in Crimes, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, December 1, 2014

Oregon Bar Bulletin Addresses Cognitive Decline Issues for Lawyers

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

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

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

 

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

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

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

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

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

Tuesday, November 18, 2014

University of Hawaii Elder Law Program Updates Manual

The Elder Law Program at the William S. Richardson School of Law, located at UH Manoa, has updated its indispensable guide to aging, including offering clear coverage of the many legal and medical issues involved.  The handbook, titled "Deciding What's Next and Who in the World Pietsch_JamesCares?  A Legal Handbook for Hawai?i's' Older Persons, Families and Caregivers," is available free on O`ahu through the Senior Helpline at the City and County of Honolulu's Elderly Affairs Division. Elder Law Program Director,  Law School Professor, and co-author James H. Pietsch said that the updated handbook is especially valuable for new caregivers uncertain about where to turn for help. The book also has an extensive resource glossary, including current phone numbers and email addresses.  "Folks planning ahead need to have sufficient information about incapacity, disability and, in general, growing old in America, so we wanted to provide some basic legal information and guidance," said Pietsch.  This new edition of the award-winning handbook was prepared by Professor Pietsch and Hawai`i Elder Law Program Administrator Lenora H. Lee.  Funded in part by the U.S. Administration on Aging, it was printed through a grant from the City & County of Honolulu Elderly Affairs Division.  "Many people don't have a good sense about end-of-life issues, wills, powers of attorney, trusts, health-care coverage, elder abuse issues, and even hiring a care-giver," continued Pietsch. "Very often, it's thrust upon them very quickly and they need help in a hurry. We know a lot of people will look to it for crisis intervention."

Source/more: University of Hawaii Manoa

November 18, 2014 in Legal Practice/Practice Management | Permalink | TrackBack (0)

Thursday, November 13, 2014

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

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

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

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

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

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

Continue reading

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

Closing up Shop?

As we first generation of elder law attorneys reach that point where we decide to retire--or have the decision removed from us, regardless of the reason--the question of closing or selling the law office becomes an important one. Succession planning is more than selling a business-it's entrusting your clients to someone who will care for and represent them as you did.  It's not an easy decision to make and not one that happens overnight. How does an attorney reach the decision to close the doors?  The ABA Senior Lawyers Division has delved into this topic, with a webinar on what to do when an attorney becomes incapacitated or dies.

The webinar, So It's Time: Responsible Planning for Closing the Law Office, was offered in October and post-webinar materials will be available for purchase from the ABA. Plan and be prepared! A good motto for our clients and ourselves.

 

November 13, 2014 in Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

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

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

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

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

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

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

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

Sunday, August 31, 2014

America's Rural Lawyer Shortage (Or Why Law Students Should Get to Know Retiring Lawyers...)

A number of law students I have known have found great jobs in recent years in smaller communities.  Here is more evidence of the reason, from the Washington Post, as reported by Danielle Paquette:  "8,500 residents, 12 Attorneys: America's Rural Lawyer Shortage."

"Fourteen years ago, the veteran lawyer built his retirement home. He decorated the basement with snowmen and skis, a nod to how he’d like to spend the future. But John Thomas, 61, can’t retire. Can’t plan lengthy trips to Colorado resorts with his wife, Nancy. Not until he finds a successor, a young lawyer to take over his law firm in this town, population 94.

 

The problem: Young lawyers in these endless plains are about as scarce as freshly powdered slopes. That’s why Thomas’s hopes soared in February, when he opened a letter from Alissa Doerr, a second-year student at the Nebraska College of Law. She wanted to be his clerk for the summer. She was his first applicant in 20 years."

August 31, 2014 in Legal Practice/Practice Management | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2014

Highlights from the 17th Annual Elder Law Institute in Pennsylvania

Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple:  "Drop everything and go to Pennsylvania's 2014 Elder Law Institute."  Indeed, this year saw some 400 individuals attend. 

Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners.  After the first two-hour joint session, over the course of two days there are four sessions offered every hour.  One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney.  Indeed, I usually sponsor two Penn State law students to attend.  As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.

One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine.  Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review.  Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future.  They frequently pose important policy perspectives, based on recent events. 

Among the highlights from the year in review session:

  • Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods.  Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
  • A GAO Report on Medicaid Managed Care programs, also released in June, concluding that  additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
  • The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
  • Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship. 

In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.

The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute

July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)