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.
Friday, January 23, 2015
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.'"
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.)
Sunday, January 18, 2015
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.
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:
Monday, January 12, 2015
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.
Tuesday, January 6, 2015
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.
Wednesday, December 31, 2014
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.
Wednesday, December 24, 2014
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.
Monday, December 1, 2014
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.
Tuesday, November 18, 2014
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 Cares? 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
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."
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.
Tuesday, September 16, 2014
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
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."
Monday, July 28, 2014
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)
Monday, July 21, 2014
ElderLawGuy (and good friend) Jeff Marshall has a great blog post on "How to Find A Good Attorney for Older Adult Issues" He knows whereof he speaks and starts off by explaining the important reasons for asking the right questions:
"Planning for senior issues like incapacity and long term care is an important aspect of the services provided by what have become known as “elder law attorneys.” Unfortunately, in most states any lawyer can say he or she practices elder law or hold themselves out as being an “elder law attorney” even if the lawyer has little or no experience with the issues that are especially important to older adults. This means seniors must be particularly cautious in choosing a lawyer and carefully investigate the lawyer before hiring."
Jeff explains the significance of "certification" as a specialist and how to assess "ratings" or particular approaches to planning, such as "life care planning." The post is useful both for consumers and young attorneys thinking about how to build a respected career.
Sunday, July 20, 2014
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, July 16, 2014
An interesting moment for me at the 2014 Internatonal Elder Law and Policy Conference at John Marshall Law School in early July occurred when I asked several speakers from China to comment on recent reports suggesting "filial support" or "family support" is attracting interest of legislators, courts and older persons in China. For example, I shared with them the text, in English and Chinese, from Chinese Law Prof Blog on "Controversy Over Elder Law in China," that included news reports on consideration of laws in Shandong province in northeastern coastal China. If passed the laws would appear to require adult children to maintain "their parents' standard of living at a level at least equal to their own."
My question sparked a vigorous debate among the Chinese participants and quite a few chuckles from the audience as we tried to keep up with the translators. Over the course of the next two days Professor Lihong Tang from the law school at Fuzhou University in Fujian Province, Professor Chey-Nan Hsieh from Chinese Culture University in Taiwan, and Professor Xianri Zhou of South China Normal University School of Law in Shanghai attempted to help me understand. Here is my understanding of several points made during our discussion, a conversation we have agreed to continue via email:
- The population of individuals aged 65 and older in China is already 119 million. From my separate research I know that the older population is projected to continue to grow at a rate of 3.2 percent per year. The percentage of the population deemed older is also increasing, and according to some reports, it is projected to hit 1/6th of the total population by 2018 and possible as high as 1/5th of the total population by 2035. In other words, as Professor Tang explained, at some point in the relatively near future the total number of elderly in China could exceed the total population -- young, middle-aged and old -- of the U.S.
- With these population statistics in mind, they advised caution in making any judgments or predictions about trends based on a single case decision or from news stories reporting about any single family controversy involving support. And of course, this point is valuable to remember in all legal research, but the importance (and challenge) of having an adequate empirical base in China may be even more significant.
- Court actions to mandate younger family members to care for their elders are not a major trend in China. Rather, they emphasized that most families voluntarily provide the majority of care and financial assistance needed by their elders.
- There are efforts to create a stronger public system of income support where necessary to meet basic needs.
- Recent news reports (that received high profile attention in the U.S., such as this 2013 report on CNN) about a Chinese law that would mandate that adult children also "visit" their elderly parents were focusing on a "proposed" law, not one that was enacted.
In addition to my on-going discussion with the law professors at the conference, Yihan Wang, Senior Judge in the People's Court of the Jing'an District in Shanghai, gave a fascinating presentation on "The Path of Judicial Protection of the Rights and Interests of the Elderly in China." He has served for many years as a judge, and is currently in charge of "civil trials, commercial trials, finance trials and elderly trials" in his judicial district in Shanghai. He explained that an "elderly judicial tribunal" was established in 1994, for civil cases in which one or both parties is aged 60 or more. His court recognizes that older adults may have unique needs for legal assistance in disputes, including a potential need for free legal representation or guidance.
After the presentation of his paper via a translator, Judge Yihan Wang provided me with a copy of the English language translation of his paper. Thus, I was able to both hear and read about his examples of cases that have occurred in the Shanghai court:
"For one example, in the disputes of sale contracts of real estate, some adult children sell their parents' apartment and violate their parents' residency by stealing their parents' identification -- or make them sign the contract with the older person is unconscious. In [some] cases, the judge will judge the contract as valid to protect the third-parties' legal rights according to the Property Law. However, in cases involving the older [person], judges will consider more about the buyer's duty of care and the residency rights of the senior. They will be more cautious and much more strict to confirm the effectiveness of the contract. Mainly to protect the older people's residency right."
In contrast to my on-going discussion with the three Chinese law professors who emphasized the voluntary nature of assistance provided by families to their elders, Judge Yihan Wang's paper suggested that some level of litigation or claims review does occur over the issue of "family support," including what he described as efforts to "remind the adult children of their duty." His paper reported that "statistics show that 56% of the claiming alimony cases are closed by conciliation. In most of these cases, after the trials, children go to visit their parents automatically and the family relationship is improved." He emphasized that for older adults, "conciliation not only protects their legal rights and interests, but also maintains their family relationship and brings their children home."
Judge Yihan Wang's paper, in translation, concludes with these words: "China's 5,000-year-old culture emphasizes respect for the elderly, pension, help age virtues, which [are] absorbed by Chinese law and policy concerning the elderly, reflected in the Chinese judicial practice and become the judicial characteristics on protection of the rights and interests of the elderly in China."
Thus, I can see that my efforts to understand the role of "filial support" or "family support" laws in China will continue, especially as it appears that there may be regional differences in how any such laws are used or needed. In most countries I have studied, voluntary assistance, both practical and financial, flowing from adult children to elderly parents, is the norm. What I find interesting is the question of to what extent is "voluntary" filial assistance also encouraged, mandated, or subject to enforcement by laws. Is the 5,000 year tradition of filial piety under sufficient pressure in the 21st century that law is necessary?
Wednesday, June 18, 2014
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.
Monday, June 16, 2014
A United Nations treaty, civil rights, guardianship, protection from school bullies, free appropriate public education, and emotional-support animals are topics covered in this disability-themed May-June 2014 Clearinghouse Review issue. Also covered: making the most of current resources to increase legal services.