Thursday, October 16, 2014
Planning for the 2015 White House Conference on Aging (WHCOA) is in full swing. The website has been launched and there is also a WHCOA blog available. You can also sign up for email updates to stay in the loop on WHCOA developments.
Tuesday, September 23, 2014
Monday, August 11, 2014
NCLC's Consumer Rights Litigation Conference on November 6-9, 2014 in Tampa, FL has scholarships available for consumer rights advocates.
REGISTER ONLINE TODAY by clicking on this link here: Register Online
Source: National Consumer Law Center
Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, July 25, 2014
The Consumer Rights Litigation Conference, put on by the National Consumer Law Center (NCLC), is set for November 6-9 in Tampa Florida. This is the preeminent program for consumer rights advocates and there are several sessions with a special focus on protection of older persons. Sessions include:
"Reverse Mortages: New Changes and Old Challenges to Foreclosure," with Odette Williamson and Margot Saunders, NCLC, focusing on "emerging issues in reverse mortgages, including the new 'ability to pay' determinations and protections for dispossessed spouses." (Friday morning, Nov. 7)
"Retirement Benefits and Bankruptcy, Do they Mix?" by Tara Twomey (NCLC), asking whether a "fresh start jeopardizes the debtor's ability to receive social security benefits" and to what extent are "retirement savings off the table for nonsecured creditors." (Saturday morning, Nov. 8)
"Challenging Financial Fraud and Scams Aimed at Older Adults," by David Kirman (North Carolina Department of Justice) and Stephan A. Weisbrod (Weisbrod, Mattis & Coply PLLC), examining legal tools that can be used to challenge these practices, including private actions and suits brought under state statutes, such as California's Financial Elder Abuse Act. (Saturday afternoon, Nov. 8)
Sunday, July 20, 2014
Per the post from The Faculty Lounge by Dan Filler:
The AALS Sections on Aging and the Law and on Law, Medicine, and Health Care are sponsoring a joint program at the January 2015 Annual Meeting. The program will consider many of the issues faced by elders, doctors, and the health care and social services systems when making medical treatment decisions for those incapacitated patients and residents who have no reasonably available legally authorized decision maker.....
Please submit your paper or proposal by Friday, August 31, 2014 at 5:00 p.m. Please send it BOTH to Mark Bauer (Chair, AALS Section on Aging and the Law), Stetson University College of Law, mbauer at law.stetson.edu; and to Thaddeus Pope (Chair-Elect, Section on Law, Medicine, and Health Care), Hamline University School of Law, tpope01 at hamline.edu
The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25. In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):
- Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
- North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
- We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
- Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts." By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.
Be there or be square! (Who said that first, anyway?)
July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Saturday, July 12, 2014
University of Missouri Law Professor David English, who is the current Chair of the ABA Commission on Law and Aging, provides a succinct outline of key legal challenges connected to aging in the U.S., an outline he also uses to organize his law school's Elder Law course. The essay appears in the May/June issue of Bifocal, capturing a lecture Professor English gave to the Institute of Gerontology at the University of Tokyo, Japan and the Beiing Administrative College in China.
In addition to the impact of demography, Professor English points to the following "challenges:"
- Employer Pensions: "In many countries, pensions provided by employers are closely coordinated with government Social Security payments. In the US, the two systems are independent...."
- Social Security: "It is predicted that the [Social Security] Trust Fund will run out of money in 2033. The program will thereupon have to cut benefits by about 25% in order to match payments to current Social Security taxes. To avoid such a sudden cut, Congress should act well in advance of the 2033 deadline to either increase Social Security taxes or modify benefits. Each year that the US Congress waits to act, the necessary adjustments will become more severe...."
- Health Care Finances: "...Medicare already has many gaps in coverage, requiring that elderly persons purchase private supplemental policies. Medicaid for the poor isn't necessarily in better financial shape, and because of low fees paid by Medicaid, many doctors refuse to accept Medicaid patients. Nor are Medicaid benefits coordinated well with Medicare...."
- Consumer Fraud: "The elderly are frequent targets of fraud. Federal and state regulation is incomplete and inconsistent.... Examples include: mortgage fraud; fraudulent sales of private health insurance; theft by court-appointed guardians; theft by agents under powers of attorneys; funeral fraud; telemarketing, home repair, and sweepstakes fraud."
- Guardianships: "Over the past 30 years, there have been major reforms in US guardianship laws. The court is encouraged to explore alternatives to guardianship before making an appointment. In making an appointment, the court is encouraged to give the guardian only such powers as are necessary, a goal which is achieved by appointing what is known as a limited guardian. But there is a big gap between the statute and the actual practice."
- Planning for Incapacity: "Most people will lack adequate mental capacity to make their own decisions sometime during their lives. Yet, most adults fail to plan in advance. There is a need for better education on the options and encouragement for people to plan."
- Health Care Decisions: "[S]igning a health care power of attorney or health care directive may not be effective to assure that health care decisions are made in accordance with the individual's wishes.... POLST [Physician Orders of Life Sustaining Treatment] shows great promise of creating a pathway whereby a patient's wishes will more likely be honored."
- Elder Abuse: "Similar to guardianship, good data on the prevalence of elder abuse does not exist but the increases in the number of elderly suggest a corresponding increase in the incidence of abuse."
Professor English was also one of the participants at the 2014 Elder Law and Policy Conference recently held at John Marshall Law School in Chicago, serving as a moderator, with JML's Barry Kozak, for the panel on "social security, pensions, and economic rights of older persons."
Tuesday, July 8, 2014
If one looks at the Uniform Law Commission website, it appears that slow but steady progress is being made by states in adopting recommended legislation governing Powers of Attorney (POAs). The ULC recommendation reflected more than four years of research and drafting, culminating in a detailed proposal for POAs issued in 2006. According to the website, 16 states have enacted the uniform law, with an additional four states, Connecticut, Mississippi, Washington, and my own home state, Pennsylvania, considering adoption in 2014. The ULC's recommendations were a deliberate attempt to "preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool of financial abuse of incapacitated individuals."
On July 3 last week, Pennsylvania's Governor Corbett signed legislation, now designated as Act 95 of 2014, making significant changes to the existing law governing POAs in Pennsylvania. However, the passage of this law also demonstrates how so-called "uniform" laws may be less than uniform from state-to-state in terms of their actual requirements, and I tend to wonder whether other states have also enacted some variation on the ULC's recommendation.
Pennsylvania Act 95 of 2014 (available as HB 1429 here) took more than 3 years of drafting, redrafting, hearings, negotiations, and compromises to accomplish. The spur for adoption was a court decision invalidating transactions executed in reliance on a "void" power of attorney, one purportedly "signed" with an X by a woman while hospitalized. The majority decision put the financial impact on the party accepting the POA, without regard to whether it was using good faith in relying on a document that may appear valid on its face. After that decision, many Pennsylvania retirement plan administrators, banks or other financial institutions were reluctant to honor POAs, fearing they could become the guarantor of misused authority. See Vine v. Commonwealth of Pennsylvania State Employees Retirement Board, 9 A.3d 1150 (Pa. 2010).
PA Act 95 of 2014 addresses the "Vine" question by clarifying a grant of immunity for any person who in "good faith accepts a power of attorney without actual knowledge" of voidness or other invalidity. But Act 95 also mandates certain execution protocols, including:
- for most but not all POAs, requiring the principal's signature, mark or third-party signature to occur in front of two adult witnesses;
- requiring the principal to acknowledge his or her signature before a notary public or other individual authorized by law to take acknowledgments;
- continuing the requirement that principals must sign "notice" forms, but now with enhanced warnings about the significance of POAs, including the recommendation that "before signing this document, you should seek the advice of an attorney at law to make sure you understand it;"
- continuing the requirement that agents must sign an acknowledgement of certain responsibilities, now including an obligation to "act in accordance with the principal's reasonable expectations."
Each of these execution requirements, although certainly permitted by ULC's proposal (and perhaps also entirely consistent with the ULC's concern about the potential for financial abuse), is greater than what is required by the Uniform Law on Powers of Attorney.
At the same time, the Uniform Power of Attorney Act includes potential remedies for abuses of POAs not addressed by old or new law in Pennsylvania, including Section 116 that would grant spouses, parents, descendants and presumptive heirs the right to seek judicial review of an agent's conduct. One open question in Pennsylvania is whether wider standing to challenge suspected abuse is necessary.
One takeaway message from the history of more than 8 years of consideration by states of the Uniform Law on POAs, and more than 3 years of consideration in Pennsylvania about how or whether to adopt some or all of UCL's specific approach, is that achieving uniformity of state civil laws is not an easy task. That makes me even more appreciative of the effort and comparative "ease" of adoption of early efforts at uniformity, such as the uniform commercial code and the recognition that interstate sales transactions would benefit from consistency.
Portions of Pennsylvania Act 95 of 2014, including the grant of immunity for good faith reliance on POAs by third-parties, are immediately effective, while other portions of the law take effect on January 1, 2015. The Pennsylvania Elder Law Institute on July 24-25 in Philadelphia will have several sessions addressing the effect of the new law.
ElderLawGuy Jeff Marshall also has a great overview of the new Pennsylvania law on his blog. Hat tip also goes to Pennsylvania attorney Bob Gerhard for keeping Pennsylvania practitioners up-to-date on the bill numbers and enactment details.
July 8, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 17, 2014
John Marshall Law School in Chicago has released the schedule for its International Elder Law and Policy Conference for July 10 and 11. John Marshall is partnering with Roosevelt University in Chiacgo and East China University of Political Science and Law in Shanghai in hosting the event, with plans for a second conference in 2015 in China. As the conference "parallels the current discussions of the United Nations Open-Ended Working Group on Ageing," the plan is for conference participants to "draft a model international Declaration of Rights for Older Persons."
Looks to be quite the happening! Speakers include scholars, practicing lawyers and judges from Ireland, Israel, Australia, Italy, Macedonia, Belgium, Taiwan, United Kingdom, and, of course, China and the U.S.
There are three keynote addresses planned, by Gerard Quinn, Professor and Director of the Centre for Disability Law and Policy at the National University of Ireland in Galway; Israel Doron, Professor of Law and Social Work at University of Haifa in Israel; and Ellionoir Flynn, Senior Lecturer and Deputy Director of the Centre at National University of Ireland in Galway.
Over the course of the two days there are five separate panels, touching on topics such as (1) dignity, equality and anti-ageism; (2) health care, caregiving and legal decision-making; (3) social security, pensions and economic rights; (4) capacity protection and prevention of abuse; and (5) advocacy, representation and access to justice. I'm going to be returning from a roundtable on social care policies and laws in Northern Ireland just in time for the Chicago conference and I'm looking forward to co-moderating the second session of panelists with Becky Morgan.
Thursday, June 12, 2014
With thanks to Phoenix, Arizona Elder Law practitioner Thomas Murphy for the heads up, the Internal Revenue Service is offering a free phone forum on "Retirement Plans after Windsor," on Thursday, June 26 from 2:00 p.m. to 3 p.m. Eastern time. The forum will be "rebroadcast" on July 8.
Not a lot of details are available on-line about the forum. Here are links to basic information, plus the June 26 registration page (registration is required, but it does not appear the forum is limited to registered agents).
Here's a link to a separate registration site for the "rebroadcast" on July 8.
Thursday, May 29, 2014
Asst. Sec. on Aging Kathy Greenlee helped to kick off the 3d World Congress on Adult Guardianship with truly one of the most powerful speeches on valuing our seniors that I have ever heard. Greenlee spoke of the danger of trivializing the lives of the elderly, especially those with advanced dementia, reminding us that the loss of memory does not equal the loss of self. I wish I had recorded her speech, but thankfully, it will be published later this year in Stetson's Journal of International Law & Aging Policy. Stay tuned for more reports on the Congress from your intrepid reporters, Kim Dayton and Becky Morgan!
Friday, May 23, 2014
John Marshall Law School and Roosevelt University, both in Chicago, and East China University of Political Science and Law in Shanghai, are jointly sponsoring an International Elder Law and Policy Conference in Chicago on July 10-11.
Keynote speakers include Professor Israel Doron of the University of Haifa in Israel and Dr. Ellinoir Flynn and Professor Gerard Quinn, both from National Unviersity of Ireland, Galway School of Law.
Scheduled panel topics include:
- Dignity and Rights of the Elderly
- Elimination of Age Discrimination
- Caregivers and Surrogate Decision Makers
- Social Security, Pensions and Other Retirement Financing Approaches
- Prevention of Elder Abuse
- Access to Justice
Here's the link to the Registration website.
Monday, May 12, 2014
Risks of Hearing Loss in Our Aging Population
MGS and MAGEC Free Webinar
Wednesday, May 21, 2014
Noon to 1 PM CDT
Research out of Johns Hopkins Medical Center is showing a correlation between hearing loss, falls, and dementia in people over the age of 50. People in this age group who have a hearing loss, are at higher risk for falls and for dementia. And not only is the risk higher for the onset of dementia, but also for a faster decline in functioning.
This information has implications for quality of life, demand for assisted living and/or skilled nursing care, and for healthcare costs. Given these implications, are there actions that can be taken to counteract these risks?
The Minnesota Gerontological Association and the Minnesot Association for Guardiansip and Conservatorship are offering a free Webinar on” Risks of Hearing Loss in Our Aging Population.” This session will explore the research in this area and discuss some potential solutions.
Marty Barnum CSC, MA, currently works as a consultant and an interpreter. She recently spent a year with the Office of Ombudsman for Long-Term Care under a special contract to look at the needs of nursing home residents with hearing loss.
Ms. Barnum previously coordinated interpreter services for the state of Minnesota, taught at St. Catherine University, and provided advocacy services for Deaf, hard-of-hearing and deafblind people in medical and legal situations.
Note: MGS has upgraded to the "Go to Webinar" platform for this webinar. You can now listen and watch through your computer, IPad, tablet or smart phone.
Register for this free webinar
Download the flyer
MGS and MAGEC Free Webinar
Wednesday, May 21, 2014
Noon to 1 PM CDT
Monday, April 28, 2014
National Senior Citizens Law Center's Executive Director Kevin Prindiville analyzes Paul Ryan's Congressional budget numbers for the Huffington Post, highlighting the effect of proposed deep cuts on federal aid programs, cuts that would dramatically impact the nation's poorest seniors. Kevin writes:
"The U.S. House of Representatives' recent approval of the Ryan budget resolution threatens programs that help poor seniors. In a disappointing vote, 219 House members gave their blessing to a budget that leaves country's older adults to struggle with less food, income, housing and care. The Ryan budget's path to poverty must not be allowed to happen. . . . By cutting essential programs that often make life manageable for those with limited means or resources, the Ryan budget will lead to poverty numbers among seniors the nation hasn't seen since the Depression."
Kevin then outlines specific terms of the House plan to cut $5 billion from SSI, $732 billion from Medicaid, as well as additional cuts to Meals on Wheels and food benefit programs.
The NSCLC, a nonprofit law firm with offices on both sides of the country, is a watchdog for the nation's low income elderly, succeeding with tough-to-win cases where the nation's most at-risk seniors are adversely affected by often-hidden changes or procedural traps in Social Security, Medicare and Medicaid programs. Additional information on NCSLC's advocacy is available on their website, along with a calendar of events including the April 29 free webinar on "Understanding and Impacting Implementation of New Medicaid Home and Community-Based Services Rules."
Tuesday, April 1, 2014
Free on-site or webinar trainings are available for elder advocates this spring. The National Elder Rights Training Project provides training on a wide range of law and aging topics to legal services providers and elder advocates nationwide. Priority for on-site training is offered to states involved in the Model Approaches to Statewide Legal Assistance Systems demonstration grants. However other organizations may also apply. Preference will be given to organizations that can commit to marketing and outreach for the training event to attract the targeted audience. The training is free and the National Consumer Law Center or another partner from the National Legal Resource Center will conduct the training. While the trainings are offered on a wide range of topics, selection of the organization is in part based on availability of trainers. Currently expert trainers are available on a wide range of consumer law topics.
The training application is available at http://www.nlrc.aoa.gov/NLRC/Training_Request/Index.aspx. You may also contact Odette Williamson at email@example.com with questions.
Friday, March 21, 2014
Health Care Reform: Implementation in Minnesota
Friday, October 24, 2014
Hamline University, Saint Paul, Minnesota
The Hamline University Health Law Institute and Hamline Law Review, with the major support of Medica Health Plans, are working together to produce a day-long CLE/CEU Symposium on Friday, October 24, 2014 titled Health Care Reform: Implementation in Minnesota.
The topic of the Symposium is law and policy issues relating to the implementation of health care reform in Minnesota. A key goal of the conference is to address real, live, outstanding, and upcoming challenges.
Call for Papers & Presenters
We are currently seeking proposals for presentations and papers for our Symposium that will examine the outstanding challenges confronting the implementation of healthcare reform. Those interested should submit a CV and a 500-word abstract to firstname.lastname@example.org by April 15, 2014. While the primary focus of your paper need not be Minnesota-specific, please explain the regional relevance of your topic and thesis. Additional information can be found here.
Health Care Providers: ethics consultants and ethics committee members; physicians; nurse practitioners; physician assistants, medical, nursing, and physician assistant students; patient advocates; social workers; chaplains; nurses; case managers; clinical educators; other allied health professionals; quality assurance personnel; and administrators
Lawyers: law review students, law students, law faculty, health law practitioners, nursing home and hospital attorneys, elder law practitioners, trusts and estates practitioners, and health care facility risk managers
Government: Minnesota and federal regulators and policymakers
Academics: professors of bioethics, medicine, public health, geriatrics, nursing
Thursday, March 20, 2014
Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders on Entering a Nursing Hom
Join the National Consumer Law Center for a Webinar on April 2
Space is limited.
Reserve your Webinar seat now here.
Elders often enter nursing homes during some of the most trying times of their lives (emotionally and financially). Unfortunately, many nursing homes take advantage of these vulnerabilities by inserting unfair terms in their admissions agreements or convincing family members or others to assent to such agreements even though they often lack the authority to do so. Our webinar will focus on nursing home admissions agreements, identifying the terms that elders and their advocates should be most wary of and explaining the protections that some states afford against enforcement of some of these terms. Though the webinar will cover a range of issues, we will focus on arbitration clauses, attempts to hold family members liable for a resident’s bills, purported waivers of a facility’s liability, and improper grounds for eviction.
Presenters: Eric Carlson, Directing Attorney, National Senior Citizens Law Center and David H. Seligman, Irving Kaufman Fellow, National Consumer Law Center.
Additional sponsorship for this Webinar is provided by a grant from the Administration on Aging/Administration for Community Living . This webinar is part of a series of National Elder Rights Training Project webinars for the National Legal Resource Center.
There is no charge for this webinar.
All time listings are in Eastern Standard Time.
If you have any questions email email@example.com
Title: Nursing Home Admissions Agreements: A Discussion of the Unfair Terms in the Agreements Presented to Elders
Date: Wednesday, April 2, 2014
Time: 2:00 PM - 3:30 PM EDT
After registering you will receive a confirmation email containing information about joining the Webinar.
Monday, March 17, 2014
Health Care Compliance Institute
3 academic credits, 35 CLE credits
Friday, March 14, 2014
The Third World Congress on Adult Guardianship will be in Washington DC May 28-30. Registration is now underway. Anyone interested in national and international developments in the realm of guardianship should attend this conference, which features speakers from 21 countries/six continents.
Information about the Congress, and registration materials, are available via the main website. My advice: this is one event you don't want to miss!