Monday, November 6, 2017

What Does It Mean To "Specialize" In Elder Law (or, for that matter, in any field of law)?

Recently, as a result of a reporter asking me to explain the significance of "certifications" for elder law attorneys, I found myself digging fairly deeply in order to respond.  The answers depend on definitions to three different, but related concepts:  expertise, specialization, and certification. 

I know that when I'm looking in a region of the U.S. where I don't personally know someone, I often start with the National Academy of Elder Law Attorneys' (NAELA) webpage that allows me to do a state or zip code search for member lawyers who identify as "elder law attorneys."  Also, depending on the issue, I look at numbers of years in practice, as well as areas within "elder law" that the individuals choose to identify as their areas of experience.  For example, are they more interested in retirement planning than, say, handling guardianships or conservatorships that might require litigation?  The NAELA attorney search engine allows members to provide this kind of information.

I also look to see if that attorney is a "Certified Elder Law Attorney" or CELA.  Or, because there are only about 500 CELAs in the United States, if I'm willing to consider a younger attorney, perhaps there is a CELA working in the same law firm or community, someone for a younger attorney to call for guidance.    

The CELA designation, which is usually listed on the NAELA website if a member holds such a designation, actually is earned from the National Elder Law Foundation or NELF, rather than NAELA.  It requires specific years of relevant experience handling elder law matters (at least 5 years), peer recommendations, participation in at least 3 years of continuing legal education focused on elder law, and passage of a day-long exam that covers the waterfront on elder practice-related issues.  The exam includes both essay and multiple-choice questions, addressing 5 "core" areas and 7 additional areas. A very seasoned attorney I know well and would recommend regardless of any "certification," once told me he didn't pass the CELA exam on the first attempt. He studied harder and passed it the next time and he likes to see lawyers in his firm seek the certification.

NAELA is a membership organization and NELF is a certifying organization, and each have relevant information to offer consumers about elder law practitioners.  (Historically, a group of NAELA lawyers helped to start the NELF organization, but the two entities have separate missions now.) Thus, I use NAELA to identify attorneys with experience and interest in elder law, and look for the Foundation's  CELA designation as a way to measure "expertise," as it  requires a mixture of objective information and testing and more subjective, but still important information from peers, to show engagement in the specialized field.  

In many states, the CELA certification also allows individuals to hold themselves out as "specialists" in elder law in advertising and communications with the public, because pursuant to professional conduct rules (e.g., Model Rule of Professional Conduct 7.4), that state has "approved" NELF as a "certifying" organization.   Each state decides for itself what certification or other measures of experience and expertise to use in deciding whether an attorney can advertise any particular "specialization." 

But what about a consumer who is trying to make an informed choice about an elder law attorney without first being aware of those organizations?  I suspect the consumer might turn to the state's Bar Association or Supreme Court websites for information.  While bar associations don't "recommend" attorneys, states do have regulatory bodies for lawyers that set standards for when and how lawyers can call themselves "specialists" in elder law or in any field of law. 

Continue reading

November 6, 2017 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (1)

Friday, November 3, 2017

Another Tech Innovation in Aging - "Illusions of Nature"

One of my favorite parts of the LeadingAge Annual Meeting is my first tour of their Expo.  Law conferences are so dull by comparison!  There are hundreds of vendors at the LeadingAge expos.  You can find a smorgasbord of senior housing options, architects eager to help you with your purpose-designed projects, all kinds of communications systems, management software and health-related devices, even cooking classes. I often find information that helps my research, including data complications by actuaries, accountants and marketing firms about trends in housing and care systems.  This year I heard about an "app" in development with a university team that included law students, to offer caregivers options to identify potential concerns, such as financial abuse. 

In the years I can attend, I keep my eyes open for my own personal "That's Creative" award.  This year, it was the Sky Factory -- where, using solar energy, the company offers a wide variety of windows, skylights, and other wall installations -- but with a twist.  These portals offer "award winning illusions of nature." Overhead views show clouds and trees, rustling in the wind.  Another window might offer a view of an especially pleasant beach, with waves in motion. That is why the designs need energy, appropriately solar energy, to keep the images in motion.   

Perhaps most unique, some of the images are designed so as to offer subtle changes triggered to the time of day (or night).  Sunlight plays across the images of nature, and shadows move with the sun.  The goal is for individuals who are house-, chair- or bed-bound to engage with nature, with the hope the engagement will stimulate mental response and circadian rhythms in the body.  The use of this product is not limited to seniors, or even disabled persons.  

November 3, 2017 in Cognitive Impairment, Consumer Information, Games, Housing | Permalink | Comments (0)

Thursday, November 2, 2017

Tired of Those RoboCalls?

You aren't the only one.  A number of times elders are targets.  The Senate Special Committee on Aging held a hearing on October 4, 2017, "Still Ringing Off The Hook: An Update on Efforts to Combat Robocalls”    The testimony came from two committee members and 4 witnesses, including Lois Greisman, the Associate Director, Division of Marketing Practices, Bureau of Consumer Protection of the FTC and PA AG Josh Shapiro. You can watch the video of the hearing or download individual testimony as pdfs by clicking here.

November 2, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, State Statutes/Regulations | Permalink

Wednesday, November 1, 2017

More From the 19th Annual Stetson Special Needs Trust Conference

I wanted to use this post to highlight some other things that I learned by visiting with folks at the conference.  Fellow Floridian Nick Burton handed me a business card and a lapel pin for Florida Adaptive Sports. "Florida Adaptive Sports [is] funded by AGED, Inc. as a part of its mission to give back to the community in the form of providing resources, opportunities and awareness for Florida’s disabled community."  I stopped by to chat with the folks from  Stephen's Place  which provides housing for individuals with special needs, but not quite the same as a CCRC since no SNF living is provided (Stephen's Place, an adult care home, is located on the west coast and offers independent and assisted living in a more urban setting) but they do work with families when a resident needs that level of care.

I was chatting as well with the folks from Mobility Support Systems,  another exhibitor, about the issues in renting a wheelchair accessible van when flying into an airport.  If someone is visiting mom who is in a wheelchair and wants to take mom out for dinner or shopping, what are the options? I thought renting a wheelchair van might be a good solution, but I'm not sure whether the typical rental car companies offer that vehicle.  The folks at the booth told me they keep a list for the various airports. It's so helpful to have that info available when making arrangements for the family visit!

I was also pleased to chat with a number of exhibitors who offer a variety of services designed to keep folks independent, and several offer fiduciary-type services. These are just some examples of learning things both inside and outside the classroom.  For more info about our conference, click here.

November 1, 2017 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Programs/CLEs | Permalink

LeadingAge: Hot Topics for Attorneys Who Advise Clients in Senior Housing and Service Industries

LeadingAge 2017 Hot Topics  for Lawyers Advising in Senior LivingThis week, the last session I was able to attend at LeadingAge's annual meeting was a panel talk on "Legal Perspectives from In-House Counsel."  As expected, some of the time was spent on questions about "billing" by outside law firms, whether hourly, flat-fee or "value" billing was preferred by the corporate clients.  

But the panelists, including Jodi Hirsch, Vice President and General Counsel for Lifespace Communities with headquarters in Des Moines, Iowa; Ken Young, Executive VP and General Counsel for United Church Homes, headquartered in Ohio; and "outhouse" counsel Aric Martin, managing partner at the Cleveland, Ohio law firm of Rolf, Goffman, Martin & Long, offered a Jeopardy-style screen, with a wide array of legal issues they have encountered in their positions.  I'm sorry I did not have time to stay longer after the program, before heading to the airport.  They were very clear and interesting speakers, with healthy senses of humor.

The topics included responding to government investigations and litigation; vetting compliance and ethics programs to reduce the likelihood of investigations or litigation; cybersecurity (including the need for encryption of lap tops and cell phones which inevitably go missing); mergers and acquisitions; contract and vendor management; labor and employment; social media policies; automated external defibrillators (AEDs); residency agreements; attorney-client privilege; social accountability and benevolent care (LeadingAge members are nonprofit operators); ACO/Managed Care issues; Fair Housing rules that affect admissions, transfers, dining, rooms and "assistance animals"; tax exemption issues (including property and sale tax exemptions); medical and recreational marijuana; governance issues (including residents on board of directors); and entertainment licensing.

Whew!  Wouldn't this be a great list to offer law students thinking about their own career opportunities in law, to help them see the range of topics that can come up in this intersection of health care and housing?  The law firm's representative on the panel has more than 20 lawyers in the firm who work solely on senior housing market legal issues.

On that last issue, entertainment licensing, I was chatting after the program with a non-lawyer administrator of a nursing and rehab center in New York, who had asked the panel about whether nonprofits "have" to pay licensing fees when they play music and movies for residents.   The panelists did not have time to go into detail, but they said their own clients have decided it was often wisest to "pay to play" for movies and videos.  Copyright rules and the growing efforts to ensure payments are the reasons.  

The administrator and I chatted more, and she said her business has been bombarded lately by letters from various sources seeking to "help" her company obtain licenses, but she wanted to know more about why.  For the most part, the exceptions to licensing requirements depend on the fairly broad definition of "public" performances, and not on whether the provider is for-profit or nonprofit.  

It turns out that LeadingAge, along with other leading industry associations, negotiated a comprehensive licensing agreement for showing movies and videos in "Senior Living and  Health Care Communities" in 2016.  Details, including discussion of copyright coverage issues for entertainment in various kinds of care settings, are here.   

November 1, 2017 in Current Affairs, 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, State Cases, State Statutes/Regulations | Permalink | Comments (0)

"America Freed From Ageism" - a LeadingAge Goal

LeadingAge President and CEO Katie Smith Sloan spoke at the Sunday morning (10/29/17) session of NACCRA's meetings in New Orleans.  Having taken the reins of LeadingAge after Larry Mannix, it's long time leader who retired in 2015, Katie seems to be settling in well.  She identified several themes for LeadinAge's immediate future, including: 

  • Advocating for an "America Freed From Ageism." Katie observing that this negative bias stands in the way of policy, philanthropy, and hiring in all of the nonprofit senior living and senior service sectors.
  • Making LeadingAge "the" trusted voice for aging.  She emphasized this goal is all about building relationships and she pointed to several recent high level policy meetings in DC where LeadingAge was invited as a key voice for older adults or the industry.
  • Katie also reported that LeadingAge received an outpouring of donations for its disaster relief fund, with over 600 donations.  So far the total is more than a half million dollars.  She gave examples of how these donations were already helping nonprofit providers affected by the recent hurricanes and fires, including helping staff members who had lost their homes to find housing and helping 3 affordable senior housing communities maximize insurance relief by using donations to pay-down deductibles. 

In the Q and A with NaCCRA members, Katie said that LeadingAge and NaCCRA can and should work together to identify common topics for joint efforts, especially on public policy advocacy.  

I'm aware that some NaCCRA members are discouraged (or perhaps frustrated is a better word) by a perception that LeadingAge tends to ignore policy points urged by NaCCRA, while still expecting NaCCRA members to support LeadingAge's positions.  Time will tell whether NaCCRA was being too tactful in raising this partnership project concern. 

November 1, 2017 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Programs/CLEs | Permalink | Comments (0)

Tuesday, October 31, 2017

What is the Difference Between Original Medicare and Part C?

We are in the thick of Medicare enrollment, so the story from Kaiser Health News explaining the differences between original Medicare and Medicare Advantage is quite timely. Medicare Vs. Medicare Advantage: How To Choose  reports that the Part C offerings are pretty stable for 2018 and in fact there are available the highest number plans for purchase all over the US.   The article explains some of the foundational concepts for Part C plans:

Basics:

Medicare Advantage plans must provide the same benefits offered through traditional Medicare (services from hospitals, physicians, home health care agencies, laboratories, medical equipment companies and rehabilitation facilities, among others). Nearly 90 percent of plans also supply drug coverage.

Pros from CMS:

Little paperwork. (Plan members don’t have to submit claims, in most cases.)... An emphasis on preventive care...Extra benefits, such as vision care, dental care and hearing exams, that aren’t offered under traditional Medicare....An all-in-one approach to coverage. (Notably, members typically don’t have to purchase supplemental Medigap coverage or a standalone drug plan.)....Cost controls, including a cap on out-of-pocket costs for physician and hospital services (Medicare Part A and B benefits).

Cons from CMS:

Access is limited to hospitals and doctors within plan networks. (Traditional Medicare allows seniors to go to whichever doctor or hospital they want. ...Techniques to manage medical care that can erect barriers to accessing care (for example, getting prior approval from a primary care doctor before seeing a specialist).... Financial incentives to limit services. (Medicare Advantage plans receive a set per-member-per-month fee from the government and risk losing money if medical expenses exceed payments.) ... Limits on care members can get when traveling. (Generally, only emergency care and urgent care is covered.) ... The potential for higher costs for specific services in some circumstances. (Some plans charge more than traditional Medicare for a short hospital stay, home health care or medical equipment such as oxygen, for instance.) ... Lack of flexibility. Once someone enrolls in Medicare Advantage, they’re locked in for the year. There are two exceptions: a special disenrollment period from Jan. 1 to Feb. 14 (anyone who leaves during this time must go back to traditional Medicare) and a chance to make changes during open enrollment (shifting to a different plan or going back to traditional Medicare are options at this point).

The article also discusses the implications for Medigap policies if the beneficiary switches enrollment to original Medicare and the premium costs for Part C plans. The article recommends a close look at the drug costs under the plan. The article concludes with a discussion of selecting doctors that participate in the beneficiary's plan. 

Helpful article!  Assign it to your students.

 

October 31, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (1)

What Happens When the Diagnosis of "Alzheimer's" Isn't the Correct Diagnosis?

On Monday I did a presentation in New Orleans for a conference sponsored by a professional liability insurance organization. My topic was "legal implications of a diagnosis of dementia" as a risk management concern and part of my task was to talk about alternative diagnoses of neurocognitive disorders, especially for clients. 

In part, my message was a note of caution.  Lack of "short term memory" may not be present, and thus attorneys, families and colleagues may not have this early warning sign of cognitive disease.  For example, a frontal lobe disorder can be "early" onset (usually meaning onset before the individual reaches the age of 60).  Language or short term memory problems may not be noticeably impaired, while higher executive functions, especially judgment, can be seriously impacted.  Changes in personality, loss of inhibition (including sexual inhibition), recklessness with money or investments may be signs, but these changes may be mistaken for "a mid-career crisis," or other personality problems unrelated to disease.   

The lawyer who invited me to do this program with him, Mark Tuft from California, has long experience and knowledge of ethical and disciplinary standards for attorneys.  On a related point, he pointed me to a recent Washington Post article, where an individual had been living for two decades with a "fatal" diagnosis of early onset "Alzheimer's Disease," which, as it turns out, may not have been accurate.  The author writes in his essay:  

Two neurologists have stated [recently] that I fall into a fairly new category called suspected non-Alzheimer’s pathophysiology, or SNAP. According to one study, about 23 percent of clinically normal people ages 65 and older and about 25 percent of people with MCI[Mild Cognitive Impairment] have SNAP. For people with both MCI and SNAP, the risk of cognitive decline and dementia is higher than for clinically normal people with SNAP.

 

I was initially diagnosed with MCI. But for the past 10 years, the diagnosis has been Alzheimer’s. It is still officially the diagnosis because information gained in trials — which is how I found out that my amyloid scan was negative and that I probably did not have Alzheimer’s — does not go on a medical record. . . . 

 

I will have to wait for science to catch up before I know for sure. Who knows, I may even be part of the next new term. I just hope it means that what I have will not be progressive and lead to death. The one thing we all should learn from my experience is to take advantage of all the tools we have access to so we can make the best decision possible.

What is next for this individual? He received the latest news with mixture of relief and confusion. Read "I lived with an Alzheimer’s diagnosis for years. But a recent test says I may not have it after all," by 

Thanks, Mark, for sharing your podium in New Orleans with me on Monday and for pointing all of us to this article, which is another reminder of the rapidly changing world of scientific knowledge about cognitive impairments. 

October 31, 2017 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Science | Permalink | Comments (0)

Continuum of Housing for Adults with Special Needs

There is a lot of conversation about aging in place and how to accomplish that goal.  Design and modifications may depend on the individual's needs. We think about the concept mainly with elders but what about younger people with special needs who may also desire to stay in one place and grow old there? If you search for resources about aging in place, much of what you find will be specific for elders, but many of the recommendations may be adapted to those who need accommodations to live independently. At Stetson's 19th Annual Special Needs Planning & Special Needs Trusts conference, I visited an exhibitor that provides a great housing option for individuals with special needs that's designed for exactly that. Similar to a CCRC, the concept is a continuum of housing that allows the individual to age in place. Annandale Village, located in Suwanee, GA., provides 4 levels of housing: independent living either on campus or in the community, assisted living and nursing home care for individuals with developmental disabilities or brain injuries.  It offers a variety of programs, both for residents and a day program.  One cool class teaches folks on managing independent activities of daily living.   They also offer respite services. I know they aren't the only organization providing these levels of housing, but I thought it is a really interesting to learn more about the concept., especially supporting the individual's residential needs through his/her life.

Full disclosure-I'm the conference chair for this Stetson conference.

October 31, 2017 in Consumer Information, Current Affairs, Housing | Permalink

Monday, October 30, 2017

The Continuing Need for Objective Advice About Continuing Care and Life Plan Communities

Over the Halloween weekend, I arrived in New Orleans for overlapping annual meetings involving law and aging issues. Whoa! The Big Easy can be a crazy place at this time of the year! Once I recovered from mistaking the annual "Voodoo Festival" at one end of the convention center for the meetings sponsored by LeadingAge and the National Continuing Care Residents Association (NaCCRA) at the other end, I was safely back among friends.  (I suspect a better comedienne than I am could come up with a good "undead" joke here!)

Settling down to work, I participated in half-day NaCCRA brainstorming sessions on Saturday and Sunday.  Members of the NaCCRA board and other community representatives worked to identify potential barriers to growth of this segment of senior housing.  Why is it that there is still so little public understanding of communities that are purpose-designed to meet a wide range of interests, housing and care needs for seniors who are thinking about how best to maximize their lives and their financial investments over the next 10, 15, 20 or more years?

During the Sunday session led by Brad Breeding of MyLifeSite.net, we heard how Brad's experience as a financial planning advisor for his older clients (who were eager for advice on how to evaluate contracts and financial factors when considering communities in North Carolina), led him and a business partner to develop a more nationwide internet platform for comparative information and evaluations.

I first wrote about Brad's concept on this Blog in 2013 when his My LifeSite company was just getting started, and it is exciting to see how far it has come in less than 5 years.  They now offer a searchable data base on over 1,000 continuing care and life plan communities.  Best of all, they have managed to stay remarkably independent and objective in the information they offer, and have both consumer and providers as customers for their information.  They haven't gone down the slippery slope of reselling potential resident information to providers as "leads."  

One audience member, a CCRC resident, who is frustrated about a lack of lawyers in her area with knowledge about the laws governing CCRCs, asked "is there a way to get more 'elder law' attorneys to understand regulations and contracts governing this part of the market so as to be informed advisors for prospective residents seeking objective advice?"

I believe the answer is "yes," particularly if current clients in CCRC-dense areas reach out  to Elder Law Sections of Bar Associations in their states, suggest hot topics, and offer to work together on Continuing Legal Ed programs to develop that expertise.  I know that almost every year at the annual summer 2-day-long Elder Law Institute in Pennsylvania offers breakout sections for lawyers on the latest laws, cases, and regulations affecting individuals in CCRC settings. Indeed, for "future" attorneys I often use CCRC contracts and related issues as teaching tools in my 1L basic Contracts course. 

October 30, 2017 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Living Alone, Frail and Needing to Evacuate

You know I've blogged several times about the recent hurricanes (and I have more yet to come). This one is about the fires from the West.  Although sheltering in place may be an option in a hurricane, you certainly can't shelter in place when your shelter is in the direct path of the fire.  Kaiser Health News recently ran an article highlighting the dilemmas and dangers in such cases. Fires Prey On Frail Residents Living On Their Own focuses on two stories of individuals who didn't get out in time. In one, the caregiver of a couple, both elderly and frail, was unable to get them out in time. In another, the younger person with special needs was found in her home after the fire passed.  The story highlights the need and obstacles in responding to fast-moving disasters like wildfires.  Many families have turned to social media in an effort to locate relatives in the path of fires.

One expert who heads up a  California Council on Aging suggested that residents keep their landlines, that service providers keep hard copies of client addresses and families exchange the contact info with neighbors of the elders.  Some areas are training individuals with developmental disabilities on how to respond to an emergency.  Everyone needs to be prepared for disasters. Some more vulnerable populations might need to be better prepared then most.

Let's hope we get a break from all of these natural disasters soon.  Stay safe.

 

 

October 30, 2017 in Consumer Information, Current Affairs, Other | Permalink

A Historical Look at Guardians for Minors and "Persons of Unsound Mind"

My research turned me to an interesting resource available in the public domain, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind.  The book was published in 1897.

Particularly in light of current issues about court oversight of guardians and conservators, it is interesting to see that even in the nineteenth century, states were struggling to decide how frequently fiduciaries should be required to make written reports of financial accounting.  Reporting only at the "end" of the appointment or at intervals of 5 years was sometimes permitted by statutes.  The treatise suggests that while annual accounts facilitate better money management by the guardian, frequent reports also served to "shift the burden to the ward, or other person assailing the account" to make a timely challenge to the report, or it will be presumed "correct." This comment seems to demonstrates the court 's reluctance to expected to be initiate oversight "unless" there was a complaint.  

October 30, 2017 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, October 27, 2017

Public Interest Lawyers - Part-Time Staff Position Open with Justice in Aging

Justice in Aging, which is one of my favorite advocacy groups, is recruiting to fill another spot at the National Center on Law & Elder Rights (NCLER). Here are some of the details:  

Washington DC, Oakland, or Los Angeles Office

Justice in Aging seeks a part-time attorney with a strong commitment to and experience providing legal services for older adults to join our organization. The successful candidate will strengthen legal services delivery to older Americans as part of the National Center on Law and Elder Rights (NCLER), which Justice in Aging administers under a contract with the Administration for Community Living. The attorney will work closely with the Project Manager, Directing Attorney and the entire NCLER team to provide technical assistance, training, and resource support to legal assistance developers, legal services attorneys, and the aging and disability network. The location for this position is Washington, D.C., Los Angeles, or Oakland, CA. Exceptional candidates in other locations will also be considered.

For more information, see the continued job description here.  Review of applications will begin on November 15, 2017.  

October 27, 2017 in Legal Practice/Practice Management | Permalink | Comments (0)

Thursday, October 26, 2017

Oregon-Just Click for POLST

Kaiser Health News ran a story last week regarding electronic storage of POLST forms. In Oregon, End-of-Life Wishes Are Just A Click Away highlights a project at Oregon Health & Science University to make POLST forms available electronically. OSHU, working with a tech company, "allow[s] health care providers to electronically find any of the 172,000 active forms in Oregon’s POLST registry with a single click, no matter where they were filed." In 5 months, OSHU doctors have accessed the forms 14,000, according to the story.

We all know the problems that may occur when health care providers don't have ready access to  a patient's advance directive documents.  This project is designed to alleviate the issue of access to POLST forms, regardless of whether the forms were signed at OSHU or elsewhere.  New York has something similar that is web-based allowing patients to complete and access forms throughout New York.  End of life wishes of patients in Oregon are more likely followed than any other state in the US according to the article. Making completed POLST forms easily accessible by providers is one step in making that outcome more possible.

Research suggests that POLST forms guide end-of-life care, whether patients die at home or in a health care facility. A 2014 study of deaths among Oregon POLST users found that 6.4 percent of patients who specified comfort-only measures died in a hospital, compared with 44.2 percent of those who chose full treatment — and 34.2 of people with no POLST form on file.

A recent analysis found that seriously ill patients in Oregon are more likely to have their end-of-life wishes honored than those in nearby Washington state — or the rest of the U.S.

October 26, 2017 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

NM Commission Submits Initial Recommendations for Improving State's Guardianship System

The New Mexico Adult Guardianship Study Commission has submitted its initial status report to the New Mexico Supreme Court.  

As we have reported earlier (here), New Mexico is one of a number of states that experienced high-profile and very serious incidents of alleged financial abuse of adult clients by their court-appointed guardians.

The report makes some 17 recommendations for prompt action aimed at increasing the quality and accountability of guardians, especially so-called "professional guardians or conservators," including: 

  • Require certification by statute or court rule of professional guardians and conservators by a national organization, such as the Center for Guardianship Certification. This recommendation is not intended to preclude New Mexico from developing its own certification requirements.
  • Require bonding or an alternative asset-protection arrangement by statute or court rule for conservators to protect the interests of the individual subject to the conservatorship.
  • Establish stringent reporting and financial accountability measures for conservators, including the following:
        1. require conservators, upon appointment, to sign releases permitting the courts
        to obtain financial documents of protected persons;
        2. require annual reports to include bank and financial statements and any other
        documentation requested by the court auditor, with appropriate protections
        to prevent disclosure of confidential information;
        3. require conservators to maintain a separate trust account for each protected
        person to avoid commingling of funds; and
        4. require conservators to maintain financial records for seven years.

The report warns that "meaningful reform of the guardianship system will not be easy or inexpensive and cannot be achieved by a single branch of government acting alone."

Rather, true change will require the legislature, the executive, and the judiciary to work together in their respective roles to enact the laws, allocate the resources, and implement the changes that are necessary to improve the guardianship system. The Commission therefore offers its initial status report for consideration, not only to the Supreme Court, but to all who are interested in improving the guardianship system.

The Court invites comments on the proposed recommendations, as well as on additional issues identified by the Commission as requiring further study.  The deadline for the comments is November 8, 2017.

My thanks to my good friend Janelle Thibau for sending me timely news of the New Mexico R & R.  Janelle and I started off as lawyers together in Albuquerque just a "few" years ago!  

October 26, 2017 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 25, 2017

The Stuff We Leave Behind

Have you thought about all the stuff you have accumulated that you will leave behind at your death? You may  make specific devises or maybe you will just leave your estate in bulk to beneficiaries to divide up between themselves. Your collection of flamingo salt and pepper shakers may be precious to you but not to your beneficiaries.  The Washington Post wrote about this situation in a story titled Americans are pack rats. Swedes have the solution: ‘Death cleaning.’ The article starts off, "[i]f your family doesn’t want your stuff when you’re alive, they sure won’t want it when you’re dead....That’s the blunt assessment of yet another self-help author from abroad who is trying to get Americans, who have an addiction to collecting and storage units, to clean up their acts."  The book will be available in the US starting in January of 2018.

The advantage of winnowing down your stuff while alive is it takes a lot of burden off your heirs. 

The concept of decluttering before you die, a process called “dostadning,” is part of Swedish culture. (It comes from the Swedish words for death and cleaning.) Karin Olofsdotter, 51, the Swedish ambassador to the United States, says  ....  “It’s almost like a biological thing to do.” Olofsdotter says part of Swedish culture is living independently and never being a burden to anyone. How you keep your home is a statement of that.

Although this cleaning out can occur at any age, the author suggests 65. She also offers some suggestions such as:

Don’t start with your photos, as you’ll get bogged down in your memories and never accomplish anything. Make sure you keep a book of passwords for your heirs. Give away nice things you don’t want as gifts, such as china or table linens or books, as opposed to buying new items. Keep a separate box of things that matter only to you, and label it to be tossed upon your death. It’s okay to keep a beloved stuffed animal or two. 

October 25, 2017 in Consumer Information, Current Affairs, Other | Permalink | Comments (0)

More on Guardianships

The ABA Journal ran an article as part of their daily news about some of the cases regarding guardians and questionable acts. Cases raise questions about adult guardianship and lawyer-hospital relationships  focuses on cases in Michigan and South Carolina.  "Cases in Michigan and South Carolina are raising questions about lawyers who receive guardianship appointments as a result of their relationships with hospitals." The story explains that in the Michigan case, the judge noted an agreement between the attorney and the hospital regarding filing petitions concerning certain patients as well as compensation from a third party (hospital).  The South Carolina case involved supposed conflicts of interest, according to the story, when a hospital attorney served as guardian. In addition to discussing the two cases in more depth, the article goes on to discuss the New Yorker article about guardianships in Nevada (see earlier blog posts) and reform activities there.

October 25, 2017 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Cremains -- Lost in Transportation

While I was supervising my law school's Elder Protection Clinic, we had several matters arising out of disputes over the bodies of loved ones.  Suffice it to say that each matter was "unique."  I even had an on-call expert, an attorney who decided to have a sub-specialty in the law of burying (or not burying) a body.  

The Washington Post offers an interesting story about cremains -- the ashes from cremation of an elderly woman in North Dakota  -- that went missing in the journey to the survivor.  The son's efforts to get answers, apologies, or "more," are documented well in Amy Wong''s piece "His Mother's Ashes Were Lost in the Mail. In his Search, He's Found only Frustration -- and Fury."    

October 25, 2017 in Consumer Information, Ethical Issues, State Cases | Permalink | Comments (0)

Tuesday, October 24, 2017

New Medicare Observation Status Toolkit from Center for Medicare Advocacy!

We have blogged several times about the issues for Medicare beneficiaries who are not admitted to the hospital but instead are on observation status. The Center for Medicare Advocacy (CMA) has released a toolkit for those Medicare beneficiaries.  Here's some information from CMA about their toolkit along with helpful links.

The information in our Toolkit can help beneficiaries, families, advocates and providers understand and respond to an “outpatient” Observation Status designation.  The Toolkit contains our Observation Status InfographicFrequently Asked Questions; A Fact SheetSummary & Stories from our partners in the Observation Coalition; A Sample Notice (the MOON); our Recorded Webinar (slides in the printable .pdf); Beneficiary/Advocate Q&A; and our Self-Help Packet.

The Toolkit can be downloaded in its entirety or browsed online at http://www.medicareadvocacy.org/medicare-hospital-outpatient-observation-status-toolkit.

There's a great infographic explaining the observation status dilemma. You could post it or hand it out to clients. Get permission from CMA to post it on your website in the client info section! Check out the FAQ as well as the self-help packet. In addition to accessing the toolkit online, you can download the toolkit as a pdf, by clicking here.

Full disclosure-I'm a member of the CMA board.

October 24, 2017 in Consumer Information, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicare | Permalink | Comments (0)

Radio Diaries: Oral Histories from a "Retirement Home"

One of my colleagues shared with me recently a 30-minute podcast from Radio Diaries, on "The Last Place."  The focus is on residents at Presbyterian Homes in Evanston, Illinois, which is sometimes described in the segment as a "nursing home." However, it seems to me to be a continuing care community (CCRC) offering a wide range of residential options, from independent living to skilled care.

The voices on this segment are far more upbeat than the title -- "The Last Place" --  would imply!  Good fuel for a family or a classroom discussion.  For me, it is a reminder that when someone says "I never want to live in that place," what they usually mean is they never want to be disabled nor in need of care.  I think that distinction can be important for families who struggle to live up to a pledge "never" to place their loved ones in care.  It's not the place, it's the disability that is the biggest issue.  I continue to encounter reminders that the "right" place (for the person's situation, including any disability) is the best place.    

Thank you, Mathew Lawrence, for sharing this link!

October 24, 2017 in Current Affairs, Health Care/Long Term Care, Housing | Permalink | Comments (0)