Sunday, October 25, 2015

Impact of Dementia on Caregivers

The October 2015 issue of Health Affairs contains an article about the impact of caring for an individual with dementia has on caregivers (family and unpaid),  The abstract provides a description of the article, the Disproportionate Impact Of Dementia On Family And Unpaid Caregiving To Older Adults 

The number of US adults ages sixty-five and older who are living with dementia is substantial and expected to grow, raising concerns about the demands that will be placed on family members and other unpaid caregivers. We used data from the 2011 National Health and Aging Trends Study and its companion study, the National Study of Caregiving, to investigate the role of dementia in caregiving. We found that among family and unpaid caregivers to older noninstitutionalized adults, one-third of caregivers, and 41 percent of the hours of help they provide, help people with dementia, who account for about 10 percent of older noninstitutionalized adults. Among older adults who receive help, the vast majority in both community and residential care settings other than nursing homes rely on family or unpaid caregivers (more than 90 percent and more than 80 percent, respectively), regardless of their dementia status. Caregiving is most intense, however, to older adults with dementia in community settings and from caregivers who are spouses or daughters or who live with the care recipient.

A subscription is required to access the full article.


October 25, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, October 22, 2015

LTC Facilities Monitoring in Illinois

I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases.  Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and  "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense."  There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.

Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws.  There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident.  The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.

In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents.  The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place.  Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.

The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency.  If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent.  Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio,  powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and  ombudsman. Other restrictions beyond the statutory ones can be imposed.  The statute addresses other matters, such as notice, reporting and more.   Read the Illinois statute here.

October 22, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

NYT: Dying Alone Is Not -- in the Long Run -- a Solo Activity

In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell.  It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days.  You may have stopped reading precisely because it is such a sad story.  But, at the same time, George's story is a surprising tale of the potential consequences of dying alone.  The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will.  Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.

My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story.  As he points out, this story gives another side to our course on Wills Trusts & Estates.     

October 22, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Wednesday, October 21, 2015

LTC & Dementia-Start Saving Now.

USA Today ran an article on October 15, 2015 about the cost of long term care for individuals with dementia, especially those with Alzheimer's. The estimated price tag?  Almost three quarters of a million dollars! Got $730K saved for nursing care? Dementia could cost that much notes that a person with dementia needing long term care could live for several years, needing round the clock care,the cost of that care mounts up and "leav[es] families in an emotional, financial and logistical quagmire."

This is a growing issue and one that will affect many. "Boomers are increasingly faced with supporting both their children and their parents, or at least helping to figure out how their parents can best help themselves. Senior citizens with heart disease and cancers that were once a death sentence are now living far longer."

The article discusses Medicare and Medicaid as far as coverage for long term care and the differences in Medicaid programs amongst states.

October 21, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (1)

The Importance of Understanding Trusts in Family Law, Especially If Divorce Looms

The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust."   The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:

Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms. 

The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children.  The issue ends with a bonus -- a primer on "will basics."

The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away. 

The entire issue seems like a good resource for a wide audience, including law students.  Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of  publication.  Apparently you can purchase paper copies (see for example the rates for the previous issue, for  Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase.  I guess you have to keep checking!    

October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 20, 2015

Evidence Based End of Life Care?

The New England Journal of Medicine published a perspective piece, Toward Evidence-Based End-of-Life Care.

In the last month of life, one in two Medicare beneficiaries visits an emergency department, one in three is admitted to an intensive care unit,and one in five has inpatient surgery. But one of the most sobering facts is that no current policy or practice designed to improve care for millions of dying Americans is backed by a fraction of the evidence that the Food and Drug Administration would require to approve even a relatively innocuous drug.

The article explains why this evidence is important

The public and private sectors are now engaged in an unprecedented array of virtuous efforts to improve end-of-life care. That these efforts are generally not evidence-based is not the fault of the organizations promoting them. It is the responsibility of investigators and research sponsors to identify, develop, and rigorously test interventions so that they can offer guidance as growing political and cultural tolerance increasingly permits implementation of end-of-life care programs. Achieving evidence-based end-of-life care will require at least four key developments — which, fortunately, are now attainable.

The article discusses the four key developments and notes in conclusion "the central challenge is to avoid complacency regarding plausibly useful but non–evidence-based initiatives. Researchers, research sponsors, and large insurers, employers, and health systems can collaborate to advance knowledge about what works best for whom. And the sooner they do so, the better...."

October 20, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Top Ten Myths and Facts about "Living Wills" -- Charles Sabatino Lays Them Out

ABA's Bifocal, an electronic journal from the ABA Commission on Law and Aging has released one of its October issue articles.  Written by Charlie Sabatino in his usual bold style, we confront ten "Myths and Facts About Health Care Advance Directives," sometimes better (if confusingly) known as "living wills."  To tease the article,  Myth #3 is "Advance Directives are legally binding, so doctors have to follow them."  You will want to read the rest of the story....

October 20, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 19, 2015

In-Person Interactions & Depression

Oregon Health & Science University (OHSU)  announced the forthcoming publication of a report on elders and depression and the differences when they had in-person interactions vs. virtual interactions.  Research: Face-to-face socializing more powerful than phone calls, emails in guarding against depression in older adults  is published in the Journal of the American Geriatrics Society (free to members).  The release on the study described the findings: "Study participants who regularly met in person with family and friends were less likely to report symptoms of depression, compared with participants who emailed or spoke on the phone. The gains people derived from face-to-face socializing endured even years later."

Here are some more details about the study from the news release:

Researchers examined the frequency of in-person, telephone and written social contact, including email. Then they looked at the risk of depression symptoms two years later, adjusting for potential confounding factors including health status, how close people lived from family and preexisting depression.

The researchers found that having little face-to-face social contact nearly doubles your risk of having depression two years later. They also reported that having more or fewer phone conversations, or written or email contact, had no effect on depression.

Study participants who met up with family and friends at least three times a week had the lowest level of depressive symptoms two years later – 6.5 percent – than those who had less frequent contact. Individuals who met up just once every few months or less frequently had an 11.5 percent chance of depressive symptoms.


October 19, 2015 in Consumer Information, Current Affairs, Statistics, Web/Tech | Permalink | Comments (0)

Market Trends in Financing for Senior Housing Options

Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948. 

For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC).  Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs.  The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.  

I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.  

Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds.  What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization?  Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?   

October 19, 2015 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (1)

Register Now. Webinar on Improving Client Mental Health to Positively Impact Abuse Resolution

NAPSA and the National Council on Crime & Delinquency announce a webinar on  Improving Client Mental Health to Positively Impact Abuse Resolution.   The webinar is scheduled for October 20, 2015 from 2-3:30 p.m. edt.

The announcement explains the webinar

In this webinar we will discuss the implementation of mental health screening and Problem-Solving Psychotherapy (PST) into routine elder abuse services. Providing Options To Elderly Clients Together (PROTECT) is a mental health program where anxiety and depression screening and problem-solving therapy with anxiety management are integrated into elder abuse services to improve the outcomes of victims with depression and/or anxiety. The webinar will describe the methods used and the effects of the program on staff and clients.

Click here to register for the webinar.


October 19, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Programs/CLEs, Webinars | Permalink | Comments (1)

Friday, October 16, 2015

Dick Van Dyke's Lucky Life "Keeps Moving"

Memories of my childhood include two now classic television moments, watching my mother do her morning exercises with Jack LaLanne and all of us laughing with Dick Van Dyke.  So it seems appropriate today, as we prepare to celebrate my Mom's 90th birthday with friends and family, that I will be able to give her Dick Van Dyke's new book, Keep Moving: And Other Tips and Truths About Aging.  The title is apt. Mr. Van Dyke is just a couple of months younger than my mother.  And, of course, my mom doesn't need Mr. Van Dyke's reminders -- she's figured it out on her own -- but we both enjoyed his previous memoir, My Lucky Life.   

Here's a recent NPR Interview with Dick Van Dyke.

And here's a link to a Podcast of Diane Rehm's recent interview of Dick Van Dyke

October 16, 2015 in Books | Permalink | Comments (0)

Thursday, October 15, 2015

FINRA Rules on Preventing Elder Abuse

The Financial Insurance Regulatory Authority (FINRA) distributed a press release on October 15, 2015. FINRA Solicits Comment on Proposed Rules Addressing Financial Exploitation of Seniors announced the release of Regulatory Notice 15-37 which seeks

comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing amendments that would require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer's account. In addition, FINRA is proposing a new rule that would permit firms to place a temporary hold on a disbursement of funds or securities when there is reasonable belief of financial exploitation, and to notify the trusted contact of the temporary hold.

The comment period closes November 30, 2015.  The regulatory notice is available here. 

The executive summary explains

FINRA seeks comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing: (1) amendments to FINRA Rule 4512 (Customer Account Information) to require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account; and (2) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit qualified persons of firms to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers.

October 15, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?

Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent.  My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.

But something in the back of my mind was itching, and of course, over  the weekend I started scratching.  I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law." 

The case is from California, where divorcing spouses were arguing over division of community property.  One focus of the disputes was proceeds of the sale of a former house.  While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt."  Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.

Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."  

The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.

On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself."  For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).

October 15, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 14, 2015

DOJ Settlement vs. CCRC

The Department of Justice announced a $255,000 settlement vs. a CCRC.  United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court).  The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."

The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability.  Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.

As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy.  Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."

The complaint and consent order are available for download here.

October 14, 2015 in Consumer Information, Current Affairs, Discrimination, Federal Cases, Housing | Permalink | Comments (0)

Marshall Kapp Discusses Legal and Pecuniary Aspects of Family Caregiving

I'm always playing catch-up on my "must read" list, but fortunately, others keep me on task.  One such article is Florida State Medicine and Law Professor Marshall Kapp's piece, inspired in part by Hendrik Hartog's 2012 book, Someday All This Will Be Yours

In For Love, Legacy, Or Pay: Legal and Pecuniary Aspects of Family Caregiving, published by the Springer Journals of Case Management, Professor Kapp begins with this overview and note of caution about legal planning:

Most caregiving and companionship provided by family members and friends to elder individuals in home environments occurs because of the caregiver's feelings of ethical and emotional obligation and attachment.  From a legal perspective, though, it might be ill-advised for an informal caregiver to admit to such a motivation.

He advises consideration of personal service or personal service agreements, explaining:

We must reject an analytically attractive and pure, but never really socially realistic, tendency to dichotomize the caregiver experience, recognizing instead that a person may simultaneously be both a family member, with the related emotional and ethical connotations of that label, and a business employee.  Morality and materiality are not incompatible.  Caregiving can be both an act of love and a marketable commodity bought and sold between non-strangers.

As Professor Kapp points out, if we as a society really wanted to encourage family caregiving without all too vague promises about future inheritances, we could go beyond mere tax credits and "instead use public funds to pay family caregivers directly."   

October 14, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Social Security | Permalink

Medicare Part B Premiums in 2016-OUCH for Some Beneficiaries

It's that time of year...CMS releasing the 2016 figures for Medicare. For some beneficiaries, the amount of their Part B premiums and deductibles is going to be a big OUCH!  The New York Times ran an editorial on October 10, 2015 on how the premiums and deductibles are calculated and what it means for some beneficiaries in 2016. The Unlucky Millions Paying More for Medicare explains

Under a 1997 law, premium payments must cover 25 percent of the projected per capita costs for Part B. The premiums, which can rise and fall from year to year, are usually deducted from beneficiaries’ Social Security payments each month. A “hold harmless” provision guarantees that for most people the dollar amount of a premium increase cannot be so big that they are left with a Social Security check that is less than that of the year before. The goal is to ensure that beneficiaries, most of whom have modest incomes, don’t have less money to live on.

Since there will be no Social Security COLA for 2016 but Part B premiums are set to rise, the impact is going to hit hard a certain group of beneficiaries:

The roughly 70 percent of beneficiaries who are “held harmless” will pay the same premium as last year. That means the increased cost will have to be made up by the other 30 percent, because of the rule that premiums must cover one-quarter of Part B costs. This group includes 2.8 million new enrollees, 1.6 million people who don’t collect Social Security benefits and 3.1 million higher-income beneficiaries.

How big a hit will this group take? A pretty big one.  Consider this in dollar amounts. 

The Part B premium has been just under $105 a month for three years, but it is projected to reach $159 in 2016 and then drop to $120 in 2017.

Similarly, the Part B deductible, which must be paid by everyone on Medicare (no one is “held harmless”), will rise from $147 in 2015 to $223 in 2016, before falling back to $169 in 2017. This will pose a particular burden to beneficiaries just above the poverty line who aren’t eligible for assistance from Medicaid in paying deductibles.

The editorial calls for action by Congress to resolve the way premiums are determined. But for now, OUCH!

October 14, 2015 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Medicare, Social Security | Permalink | Comments (1)

Tuesday, October 13, 2015

Let's Get this Right: "Who Is Your Client?" in Elder and Disability Law

In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs.  But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"

A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients.  In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem.  The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.

In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."

The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and  therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."   

As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available." 

However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent.  Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.

Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."

The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship  violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest.  Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.

The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care." 

The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."

October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 12, 2015

Senate Special Committee on Aging--Hearing on ID Theft

The Senate Special Committee on Aging held a hearing on October 7, 2015.  The subject of the hearing  was Protecting Seniors from Identity Theft: Is the Federal Government Doing Enough?” 

Witnesses included a representative of the Senior Medicare Patrol, HHS, CMS and the Electronic Privacy Information Center (EPIC).  Individual witness' testimony  is available for download as a pdf. A video of the hearing is available here. The EPIC witness testified concerning identify theft related to Social Security Numbers. A press release about his testimony is available from the EPIC website here.

October 12, 2015 in Consumer Information, Current Affairs, Social Security | Permalink | Comments (0)

Livable Communities=Good Economy

AARP ran an article on the impact that livable communities have on local economies. The Livability Economy Livable Communities bring financial benefits to homeowners, business and local governments. covers a new report from AARP on The Livability Economy: People, Places and Prosperity.

This 28 page report focuses on 4 domains for livability: compactness, transportation, diversity of housing and land use integration.  This is how livability is explained in the report

Livability is a high-level performance measure of neighborhood design factors that are critical to high quality of life for people of all ages. The Livability Economy identifies a framework based on these design factors that includes four essential livability outcomes, and documents how communities have benefited economically by focusing on these outcomes ....

October 12, 2015 in Consumer Information, Current Affairs, Housing, Retirement | Permalink | Comments (0)

Mental Health Awareness - What They Don't Teach You in Law School (...Really??)

Last week was "Mental Illness Awareness Week," and in recognition of that fact, Maryland  Attorney Michael E. McCabe, Jr. posted an important Blog item on representing clients with diminished capacity.  I'm impressed that discussion of the need for lawyers to appreciate the potential for mental health to impact any aspect of the lawyer-client relationship is written for the IPethics & INsights blog, his law firm's " resource for intellectual property rights attorneys." 

In other words, the topics of mental health and legal capacity are not exclusively the province of estate planners, elder law attorneys, disability law practitioners or poverty law experts.

He notes at the outset:

According to the leading mental health organization in the country, 1 in 5 adults in the United States suffers from some form of mental health condition or disorder. Thus, it is likely that at some point in your legal career, you will be representing an individual client or a representative of a corporate client, who suffers from some degree of mental illness.

Attorney McCabe points to ABA Model Rule of Professional Conduct 1.14 as guidance, while also suggesting:

A two-prong test may be useful when determining the existence and degree of a client's mental illness:


(1) "take reasonable steps to optimize capacity," and


(2) "perform a preliminary assessment of capacity."

Attorney McCabe also links (although not directly attributing his recommendation) to Charlie Sabatino's important 2000 article, "Representing a Client with Diminished Capacity:  How Do You Know It And What Do You Do About It?"

I suppose I do have a small quarrel with the author, however.  The title of his post is "What They Didn't Teach You in Law School: Representing  Client with Diminished Capacity."  Mr. McCabe graduated law school in 1992, and perhaps diminished capacity was not well addressed by law schools at that time.  Although it could be my bias as an academic interested in aging policy, I believe law schools have changed with the times.  Certainly I find myself teaching the importance of "capacity" issues and the attorney-client relationship, and I start this in my 1L course on Contracts, while digging deeper into the field of mental health impacts in Wills/Trusts/Estates and, of course, Elder Law.  Other faculty members address mental health in a variety of other contexts, including courses on education law.

If Mr. McCabe is right that law schools are not currently addressing the complex concerns attached to mental health, then certainly the moral from his column is "we need to do better." 

My thanks to Attorney McCabe, and to Dickinson Law Professor Laurel Terry for sharing his article. 

October 12, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)