Monday, July 13, 2015

Studying the Culture of Change in Nursing Home Settings

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.

See here for more details. 

July 13, 2015 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Statistics | Permalink | Comments (0)

2015 White House Conference on Aging Today!

Today is the 2015 White House Conference on Aging. The event is being live streamed so check it out.  More info is available here.

July 13, 2015 in Consumer Information, Current Affairs, Webinars | Permalink | Comments (0)

Sunday, July 12, 2015

NYT: Specialists with Team Skills May Help with Planning

From the New York Times, Making Decisions about Elder Housing May Take a Team Effort, by John Wasik:

But for elderly people like Ms. Renninger, now 83, deciding what to do next can be an almost overwhelming task. Is it time to move to a nursing home or some other type of assisted living? Or will home care with a variety of support services work?

 

It is an issue millions of people — especially baby boomers and their parents — are grappling with now. The choices are so complex that more and more people are finding they cannot make the decisions alone. As a result, with the number of Americans age 85 and older growing faster than any other age group, as the Congressional Budget Office reports, so is the demand for elder care specialists.

Detailing what many Elder Law Attorneys also provide, the article gives several examples of professionals with multi-disciplinary skills, such as a geriatric care manager, or a doctor who is also a certified financial planner.  Thanks to Professor Laurel Terry for sending this timely link.

July 12, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Friday, July 10, 2015

Louisiana Governor Signs Amended "Lifetime Necessities" Law Obligating "Ascendants & Descendants"

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.     

July 10, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Medicare to Cover Advance Care Planning?

On July 8, 2015, the Centers for Medicare and Medicaid Services (CMS) announced the proposed 2016 Physician Fee Schedule that includes a provision for paying doctors to talk to patients about end of life care.  Referenced in the proposed rule as advance care planning, comments are due by 5 p.m. on September 8, 2015.  The proposed rule will appear in the Federal Register on July 15, 2015. For more information see Kaiser Health News (KHN) Medicare Proposes Paying Doctors For End-Of-Life Discussions.

July 10, 2015 in Advance Directives/End-of-Life, Federal Statutes/Regulations, Medicare | Permalink | Comments (0)

Thursday, July 9, 2015

If You Can't Beat Alzhemier's, Can You at Least Delay It?

In Alzheimer's Spurs the Fearful to Change Their Lives to Delay It, Washington Post writer Fredrick Kunklen details various ways that individuals and groups are working to buy more time from genetic profiles or family histories that suggest a greater likelihood of dementia: 

When Jamie Tyrone found out that she carries a gene that gives her a 91 percent chance of developing Alzheimer’s disease beginning around age 65, she sank into a depression so deep that at times she wanted to end her life.

 

Then she decided to fight back. She exercised. She changed her diet. She began taking nutritional supplements, including fish oil, vitamin D, vitamin B12, curcumin, turmeric and an antioxidant called CoQ10. She started meditating and working mind-bending puzzles, such as Brain HQ. She joined a health clinic whose regimen is shaped by a UCLA medical study on lifestyle changes that can reverse memory loss in people with symptoms of dementia. She started a nonprofit group, Beating Alzheimer’s By Embracing Science (BABES), to raise money and awareness about dementia.

 

“I found my voice,” said Tyrone, 54, a registered nurse who lives in San Diego.

Here is the link to "BABES" for those who want to read more about that group.

July 9, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Science, Statistics | Permalink | Comments (0)

Wednesday, July 8, 2015

Check Out This Blog

I always spend some time at the beginning of the semester talking with my students about language used to describe elders as well as attitudes and stereotypes. I was interested in seeing this blog, This Chair Rocks. As the blog author explains

So how come so many of us unthinkingly assume that aging equals a grim slide into depression, diapers, and dementia? That 20th century’s astonishing leap in life expectancy is a disaster-in-the making? Underlying all the hand-wringing is ageism: discrimination that sidelines and silences older people. And unlike racism and sexism, it has barely bleeped onto our radar.

So I’m on a crusade to get people of all ages to wake up to the ageism in and around us, cheer up, and push back.

The author also has a question & answer blog, Yo, Is This Ageist? that allows readers to submit questions that the author answers. What a great tool for students!

 

July 8, 2015 in Current Affairs, Discrimination, Weblogs | Permalink | Comments (0)

July 15: ABA Hosts Webinar on What Every Attorney Needs to Know about SSI

Two of my favorite bright lawyers (with great hearts, too) are Kate Lang from Justice in Aging in Washington D.C. and John Whitelaw from Community Legal Services of Philadelphia.  Kate and John are the speakers at an upcoming ABA hosted webinar on Supplemental Security Income (SSI): What Every Attorney Needs to Know.

Time:  1 to 2:30 p.m. (Eastern Time)

Date: Wednesday, July 15, 2015

Here are other details about registration and cost. 

July 8, 2015 in Federal Cases, Federal Statutes/Regulations, Programs/CLEs, Social Security, Webinars | Permalink | Comments (0)

Tuesday, July 7, 2015

NYT: Starting Your Own "Conversation Project" With Family

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! 

July 7, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues | Permalink | Comments (0)

Monday, July 6, 2015

California State Bar Offers On-Line Guide for "Seniors and the Law"

SeniorsEnglish2015COVERThe State Bar of California offers an on-line "guide for maturing Californians," available in PDF format.  This is an updated, 2015 version. At first I was a bit dubious, as the length is just 12 pages and the print is small. However, on closer look (and with the help of that little built-in magnifying class for reading PDF documents on line), I found it fairly comprehensive and a good starting place. It works not just for seniors but the whole family. 

Written in a logical Q & A format, often starting with "yes or no" answers before offering a more detailed explanation and suggested resources, the brochure covers topics such as:

 

  • What is Supplemental Security Income?
  • Can my landlord evict me for any reason at all?
  • Can I install grab bars, lower my counters or make other needed modifications over my landlord's objections?
  • How is Medi-Cal different from Medicare?
  • How can I help ensure that my affairs will be handled my way if I become incapacitated?
  • If my elderly mother gives away her assets, will Medi-Cal pay for a nursing home?

In addition, the brochure describes more subtle topics such as how "assisted living communities," may differ (and be covered by different regulations ) than "continuing care retirement communities," or why "living trust mills" are something to avoid.  It warns that insurance brokers and agents other investment advisors are prohibited in California from using "senior specific" certificates or designations to mislead consumers. 

According to the July 215 issue of the California Bar Journal, the senior guide is available in both Spanish and English, although I could only find the English version on-line.  Free print copies are available for order (although donations to offset costs are accepted!)  

Thank you to Professor Laurel Terry for sharing this resource! 

July 6, 2015 in Books, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Medicare, Programs/CLEs, Social Security, State Statutes/Regulations | Permalink | Comments (0)

Washington Post Op-Ed: Summer Reading Suggestions for Law-Students-To-Be

George Mason University Law School Michael Krauss offers an list of books for newly admitted law students to read over their summer vacation.  Interesting selections, both expected and unexpected.  Here are a few of his recommendations from his recent Washington Post Op-Ed:

1. Truman Capote, “In Cold Blood,” 1966. Capote’s masterful account of the 1959 murders of Herbert Clutter and his family in Holcomb, Kan., “In Cold Blood” is a study in evil. It is also a provocative examination of our criminal justice system and capital punishment.

 

2. Brooke Goldstein and Aaron Eitan Meyer, “Lawfare: The War Against Free Speech,” 2011. “Lawfare,” the use of litigation as a weapon to silence and punish an opponent, is a significant challenge to free speech and rule of law today. Bad lawyers created lawfare; good lawyers must combat this subversion of the goals of our profession.

 

3. Harper Lee, “To Kill a Mockingbird,” 1960. Read this high school favorite again, and this time focus on the jurists: the judge, the prosecutor and defense attorney Atticus Finch himself. Did Atticus react ethically to the racism of the system? How should you behave, as a lawyer, when presented with a case of flagrant injustice?

At least a couple of the selections, including the Federalist Papers and the reasons for suggesting B.F. Skinner's Walden Two, strike me as uniquely consistent with George Mason Law's approach to "law and economics."   But I also suspect that even seasoned law professors could benefit from any of these relevant, if perhaps unusual, summer "beach" reads. 

July 6, 2015 in Books | Permalink | Comments (0)

Friday, July 3, 2015

Pennsylvania AG Files Consumer Protection Suit Against Golden Living Nursing Homes

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

Germany Makes Int'l Claim for Filial Support Against U.S. Relative, Seeking Nursing Home Costs

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.

Continue reading

July 2, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, International | Permalink | Comments (0)

Wednesday, July 1, 2015

New Yorker Article on Death with Dignity and Losing "Levensperspectief"

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.

July 1, 2015 in Advance Directives/End-of-Life, Current Affairs, Ethical Issues, International | Permalink | Comments (0)

Tuesday, June 30, 2015

Ciao to the Elder Law Prof Blog

Readers,

Today marks my final day as a regular contributor and editor of the Elder Law Prof Blog.   Since I started the Blog ten years ago (May 2005), many things have changed in the practice and teaching of elder law, but one constant has been the commitment of those of us in academia and of practitioners to advocating for and, when necessary, litigating in behalf of the older persons and those with disabilities and special needs to protect their rights.  During those ten years, the lay press has finally become aware that aging societies must change their infrastructure and outlook to accommodate the needs, and special contributions and abilities, of our seniors.  I'm retired now from full time teaching; next month,  I will be moving on to a new Blog, writing in behalf of the elder and special needs firm of Long Reher & Hanson.,   I will continue to edit the NAELA eBulletin and the Thomsen-West treatise Advising the Elderly Client, and I will continue to work on issues involving international guardianship law and practice.   Mostly, though, I will be taking care of my garden and producing my art, which has become a much-loved second career.

I leave the Blog in the capable hands of Becky Morgan and Katherine Pearson.   Thanks to everyone who has contributed to the success of this blog for so many years.

    --AKD

June 30, 2015 | Permalink

Long Island "Elder Law" Attorney Pleads Guilty to Stealing $797K from Clients

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.

June 30, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases | Permalink | Comments (0)

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 Divorce of 90+ Year Olds, Nebraska High Court Confirms Award of Alimony to Pay Nursing Home Fees

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.

June 28, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Cases | Permalink | Comments (0)

Friday, June 26, 2015

5-4: US Supreme Court Holds States Must License and Recognize Same Sex Marriages

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.

Here's a link to the Supreme Court's full opinion in Obergefell v. Hodges, released today, June 26, 2015.  Interestingly, June 26 has also hosted past landmark rulings affecting marriage rights.

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. 

June 26, 2015 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (1)

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.

 

On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.

 

"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)