Sunday, April 13, 2014

Critical Issues to Consider in Planning Via Powers of Attorney

ElderLawGuy Jeff Marshall succinctly discusses four critical issues that individuals and families should consider when using Powers of Attorney in estate and incapacity planning. Here's the link to Jeff's "Powers of Attorney: Things You Need to Know."  

April 13, 2014 in Advance Directives/End-of-Life, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (1) | TrackBack (0)

Monday, March 24, 2014

Call for a "Collaborative National Strategy" On Elder Abuse

Law Professor and Deputy Dean Wendy Lacey has published a comprehensive article detailing challenges that exist in addressing the growing phenomenon of elder abuse, including:

  • Lack of a comprehensive, national mandate for safeguard of older adults;
  • Lack of innovative legal reforms at the state level;
  • Ageism;
  • Invisibility of our older people;
  • Lack of awareness within the community of the prevalence, nature and signs of elder abuse;
  • Absence of an international normative framework for protecting the rights of older persons.

All of these points strike a chord for those who work on behalf of victims of abuse in the United States.  Of course, the fact that this list is from Professor Lacey's article on "Neglectful to the Point of Cruelty? Elder Abuse and Rights of Older Persons in Australia," published in the Sydney Law Review in March, 2014, does not change the significance of her call for a "collaborative" strategy, "incorporating a rights-based approach to the review and reform" of laws, whether on a state, territorial, national or international basis.    

March 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Updated: The Importance of Accountability to Residents of CCRCs

Paula Span, writing for the New York Times' column, The New Old Age, offers several perspectives on the Vi of Palo Alto lawsuit filed by residents at this high-end, California continuing care retirement community (CCRC). In her firest piece, "CCRC Residents Ask, 'Where's the Money?'" she sets forth competing viewpoints of the parties:

Though their suit covers several matters, concern over eventual refunds is at heart of the battle. In their complaint, the plaintiffs call the transfer of money from the local provider to its Chicago parent company “upstreaming.”

 

Management calls it standard business practice. Entrance fee repayments come not from a reserve, but from the eventual resale of an apartment after a resident moves out or dies, said Paul Gordon, a lawyer for Vi. “Once I pay someone, I can’t tell them what to do with it afterwards,” he said. “It’s their money.”

 

“The payments are going to be made,” Mr. Gordon said. “The rest is eligible for distribution as a return on investment” — i.e., as profit.

 

That’s a different arrangement from what residents believe they signed up for. Because the Chicago company has not assumed the debt owed for eventual refunds, residents “lost all the security and peace of mind they had paid for,” Mr. McCarthy [the attorney for Vi plaintiffs] said.

In her second article released the next day,  Ms. Span takes a broader view than the single lawsuit involving Vi of Palo Alto, noting that "In Many States, Few Legal Rights for CCRC Residents," citing some of my work with states where resident-inspired changes are under consideration, and noting the important work of the National Continuing Care Residents Association, also known as NaCCRA.   

March 21, 2014 in Current Affairs, Federal Cases, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Student Comment on Expansion of Medicaid Estate Recovery

From 3L student Katie L. Summers at my own law school, Penn State Dickinson,  a recently published Penn State Law Review comment titled "Medicaid Estate Recovery: To Expand, or Not to Expand, That is the Question."  Here is a taste, from the abstract:

"To recoup some of the costs of Medicaid, the states are required to implement a Medicaid estate recovery program.  There are certain mandated requirements, but the reach of the recovery program is primarily left to the discretion of the states.  Pennsylvania recently contemplated expanding its Medicaid estate recovery program, but the proposed changes were not enacted.  This Comment provides an overview of Medicaid estate recovery in Pennsylvania by exploring the background of Medicaid, Medicaid estate planning, and Medicaid estate recovery generally.  In addition, this Comment examines the arguments for and against Medicaid estate recovery.  Finally, this Comment recommends the creation of a system that expands Medicaid estate recovery in Pennsylvania, while retaining certain protections for the deceased Medicaid recipient’s heirs."

March 17, 2014 in Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Webcast: Dealing with Financial Institutions on POAs (or with other Fiduciary Authority)

Recently I received a communication from a professional agent, the head of a nonproft guardianship organization, and someone I have watched in action for eight years.  He and his team of carefully supervised agents work on behalf of elderly clients, disabled persons, and family members to handle financial matters. They are paid modestly, on a sliding scale, based on the client's income or estate. Sometimes they are operating as the court-appointed guardians, while other times their authority was granted by the principal through a POA, often with the cooperation (and sometimes the gratitude) of the family. 

This professional reported to me that they "are having increasingly difficult times using our authority for legitimate purposes, to the point where we have to subpoena information from banks as the guardian, because they will not accept our appointment."  Further, he reports "some banks are not honoring our POA or are adding unreasonable burdens, not required by law, leaving us unable to assist an older person."

Here is an experienced agent, who is trying do the job as a fiduciary in a highly professional manner. On the other side of the aisle are banks and other financial institutions, who have become understandably "gun shy" because of increasingly high profile cases of "bad" agents -- often family or "friends" -- who have misused their authority.

Well, as you might guess, this very topic has generated a timely CLE program!  "Dealing With Financial Institutions in Estates, Trusts and with POAs" is the title of a half-day program sponsored by the Pennsylvania Bar Institute that will take place at the following dates and times:

  • Tuesday, February 4, 2014, from 9 to 1:15, in Philadelphia, PA
  • Wednesday, February 26, 2014, from 9 to 1:15 in Pittsburgh, PA
  • Monday, March 3, 2014, from 9 to 1:15, in Mechanicsburg PA
  • Live Webcast on Monday, March 3, 2014 via webcasts.pbi.org

The program will focus on "bridging the divide" between financial institutions and agents, to help both sides better understand the powers and limitations conferred by law.  In additional to "family" fact patterns, the program will offer insights into fiduciaries acting on behalf of business owners. The faculty include experienced lawyers representing financial institutions and individuals -- plus one of those pesky law professor types. 

Pennsylvania, as is true in other states, has a number of potential changes in law pending at the state legislature, influenced in part by the Uniform Power of Attorney Act changes, first recommended for adoption by the states in 2006.  The program will provide the lates updates and trends.

For more, including remote access to the live webcast, go to the Pennsylvania Bar Institute's webpage, here.

January 30, 2014 in Estates and Trusts, Ethical Issues, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Recent Moves to Protect Seniors from Fraud in Sale of Investment Products

A few years ago, one of the more perplexing cases handled by Penn State's Elder Protection Clinic involved the sale of deferred annuities (specifically, an annuity that would not fully mature for 20 years) to a senior, a widow in her early 80s. 

The individual was a ripe target for a manipulative sales pitch, having recently been diagnosed with early stages of dementia, even though at the moment of sale she was still living independently in her home.  She was able to talk and communicate; arguably she did not seem impaired.  She was told the product would save on taxes -- a pitch alluring to the frugal woman -- except for the fact that she really didn't need to save on taxes.  

If one lives long enough or has looming care needs even at an earlier age, an individual's post-death estate planning goals can conflict with pre-death care needs. In the clinic client's case, the woman's  annual income was modest, and her total estate was not large enough to trigger other major taxes.  The assets used to fund the annuity were virtually her entire savings.  Several months later, her daughter learned of the purchase, while exploring care options for her mother. Her mother was facing ineligibility for Medicaid, as the purchase of the deferred annuity would be treated as transfer, while the alternative was a large penalty if she cashed in the annuity "early." 

How often does this -- or worse -- happen? 

In "Still No Free Lunch: Recent Regulatory Initiatives to Protect Seniors From Fraud in the Sale of Investment Products," 41 Securities Regulation Law Journal 397 (Winter 2013) (paywall protected; available on Westlaw as 41 No 4 SECRLJ Art 2), attorneys  Ivan B. Knauer and Michele C. Zarychta address recent efforts to prevent or address fraudulent practices by an array of regulatory bodies. The 2013 piece updates their 2008 article (available at 36 No 4 SECRLJ Art 3). They outline several types of fraud and various financial products often marketed specifically to elders.  For example, they observe:

"One of the most pressing concerns of the regulatory entities is the improper -- or at least confusing-- use of 'senior' designations by professionals, implying that a professional has expertise or training in senior-specific issues.  FINRA [the Financial Industry Regulatory Authority] 'Rule of Conduct 2210 prohibits brokerage firms and brokers registered with FINRA from referencing nonexistent or self-conferred degrees or designations or referencing legitimate degrees or designations in a misleading manner.'  Misleading use of such designations may also violate federal securities laws or state laws."

The authors, who are experienced in representation of investment and financial service companies, recognize that business lawyers can help clients recognize the need to "take measures to ensure that their own policies and procedures protect seniors."  "Still No Free Lunch" is a reminder that attorneys who are advisers to companies can and should be a larger part of the solution, rather than be viewed as part of the problem. 

In reading the article, which emphasizes  regulators' programs to "educate" the public, I am struck by the likelihood that a key tipping point occurs when a senior's susceptibility to a manipulative pitch is outweighed by his or her weakened ability to recognize risk, regardless of any fraud-prevention education. That was true, for example, with our clinic's client.  Her life-time frugal nature was still intact; however, her judgment about whether she needed to "save" money on taxes was diminished. More education was not the solution for her, as she had probably lost the ability to appreciate its application.  Indeed, a common marketing practice to seniors -- free lunches or dinners disguised as "educational seminars" -- trades upon that very fact, thus giving rise to the "no free lunch" theme in both articles by authors Knauer and Zarychta.

The authors detail stepped up enforcement efforts, including recent measures by the Consumer Financial Protection Bureau, established in 2010. 

Hat tip to Penn State Dickinson Law Professor Lance Cole, who shared this interesting article.

January 13, 2014 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, January 10, 2014

Medicaid Puts New "Wrinkle" on Old Topic of Marriage Penalties

I can remember when tax-savvy couples might plan their wedding dates according to the tax impact, and thus there was talk in political circles about the "Marriage Tax Penalty." 

Recently, one of our Elder Law Prof Blog readers wrote to suggest we post articles about the impact of late-in-life marriage on Medicaid eligibility.  Good idea!  Many might assume that a well-drafted prenuptial agreement should preserve a split in retirement savings.  That assumption could well be dangerous -- in the context of Medicaid.  Here are links to a few recent articles, with brief excerpts to whet the appetite for reading more:

Late Life Love (Part II), by Monica Franklin, 49 Tennessee Bar Journal 30 (Feb. 2013):

"When discussing prenuptial agreements and marriage, we need to advise our clients that if one spouse needs Medicaid to pay for long-term care, the assets of both spouses will be considered by the Medicaid agency ([Tennessee] Department of Human Services, DHS). However, if the couple chooses cohabitation, DHS only considers the assets of the disabled partner. This information is crucial for couples considering late-life marriage."

Paying for Long-Term Care in Illinois, by William Siebers and Zach Hasselbaum, 100 Illinois Bar Journal 536 (October 2012), noting that with changes to Medicaid law, effective in Illinois in 2012:

"Eligibility for long-term care assistance will be denied  [in Illinois] if the community spouse or institutionalized spouse refuses to disclose assets during the application process. Prior to this change, a community spouse with separately owned assets held for at least five years could decline to have those assets considered in the application process for the institutionalized spouse.  This scenario commonly arose in second marriage situations. . . . "

Gray Divorce and Remarriage, by William DaSilva and Steven Eisman, 83 New York State Bar Journal 26 (July/August 2011):

"Another growing trend in the practice of elder law -- relating to both matrimonial law and health care planning -- is the use of so-called 'Medicaid divorces.' In fact, the use of Medicaid gifting and Medicaid planning received judicial sanction from New York's highest court in 2000 in [the case of] In re Shah, [95 NY 2d 148 (2000)].  In this type of divorce, the 'spouse in the community' ... stands to lose a lifetime's worth of savings unless a health care plan is devised that provides care for the ill or incapacitated spouse and simultaneously protects the assets of the spouse in the community so that both spouses do not end up impoverished wards of the state.  A prenuptial agreement alone will not defeat a claim of Medicaid."

In my admittedly quick search for articles on the topic of prenuptial agreements and Medicaid, I did not find a comprehensive discussion by academics or law students in an academic law review. Rather, as suggested by the above citations, the articles I found were all state specific, from state bar journals.  Perhaps one of our law school colleagues has a work-in-progress or article to share?  Or, alternatively, perhaps some of our academic readers are looking for a good, comprehensive research topic for the future.

For our lay readers, this is a good opportunity to remind you this Blog is not intended to be a source of legal advice for specific issues.  Of course, we do recommend that you consult with an experienced elder law attorney for state-specific advice!  

January 10, 2014 in Ethical Issues, Health Care/Long Term Care, Medicaid, Property Management, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Tuesday, January 7, 2014

Common misconceptions about Roth IRAs...

Via Bankrate:

Sometimes what you don't know can hurt you, especially when it comes to individual retirement accounts. For instance, if you don't know that contributions for the prior year can be made up until the April 15 tax deadline of the current year, you may be missing out.  Some misconceptions are innocuous while others can lead to serious tax blunders. Don't feel bad; even financial advisers get tripped up by the intricate rules of IRAs. Figuring out how the accounts work and what's allowed could be a full-time job. As a result, the list of things most people don't know about IRAs could fill a book.

This article list nine common misconceptions about IRAs--read about them here.

 

January 7, 2014 in Property Management, Retirement | Permalink | TrackBack (0)

Wednesday, December 18, 2013

Stanford: Getting a Better Picture of Financial Fraud

A study released in December by the  Stanford Center on Longevity addresses one of my frequent concerns.  Reports on elder abuse, particularly those on financial abuse and exploitation, routinely include a statement to the effect that "X number of financial fraud cases were examined during the year" but that that more time/money/energy should be devoted to addressing the problem "because X plus Y number of cases exist" but are unreported.  There is rarely any explanation for the prediction.  While I accept that there is likely to be underreporting, don't we need better measurement tools than intuition? 

In "The Scope of the Problem: An Overview of Fraud Prevelance Measurement," Stanford researchers address exactly this issue.  "'Without accurate and reliable estimates of fraud,' wrote Martha Deevy, director of the Financial Security Division at the Stanford Center on Longevity, 'it is difficult to understand what works or does not work to protect victims from harm.'"  The problem may be not just underreporting, but "underadmitting," especially for victims of elder abuse.

The Stanford report illustrates how analysis of recent sources and methodology can explain variations in predictions, thus also helping to design better tools for the future, including better surveys.  For example, they point to the 2011 study of elder abuse in New York State by Lachs & Berman, "notable as a comprehensive endeavor that used multiple sources of data and collaboration among community, governmental, and academic partners to get a sense of the 'big picture' problem." 

Thanks to my colleague, Laurel Terry, for sharing this report.  Laurel and Howard are the justifiably proud parents of a Stanford sophomore. 

December 18, 2013 in Crimes, Ethical Issues, Property Management, Statistics | Permalink | Comments (0) | TrackBack (0)

Friday, December 13, 2013

Elder Exploitation: PA Hearings on Protective Services Tackle Tough Topics

Pennsylvania State Capitol December 2013Pennsylvania's House of Representatives has been holding a series of hearings on elder abuse, in anticipation of potential amendments to the state's Older Adult Protective Services Act.  The hearings offer presentations and panel discussions with experts speaking from different perspectives, including administration, law enforcement, providers, and advocates from various organizations. 

I was invited to speak at the last panel on the topic of "financial exploitation," as a member of the Pennsylvania Bar Association's Elder Law Section, and because of my experience as the former head of Penn State Dickinson's Elder Protection Clinic. [UPDATE: Here's a link to my written testimony, submitted in advance of hearing.]  Other speakers included representatives of the Pennsylvania Bankers Association; community banks; credit unions; and from Area Agencies on Aging that are charged with investigation of reports of suspected abuse.  A particularly strong speaker was Linda Mill, a certified financial examiner and former banker, who is now the investigations manager for Temple University's Institute on Protective Services.

During the bankers' presentations, speakers emphasized their institutions' training for all levels of personnel to spot red flags of abuse.  This was part of their argument against any need for the state to adopt "mandatory reporting" of suspected abuse by banks and other financial institutions. ElderAbuseHearing- Panel of Witnesses   In contrast, Mills testified that during the last ten years, despite her history of working on the bankers' side, she had come to the personal conclusion that mandatory reporting is necessary in order to provide more timely, effective investigation by public authorities. Mills pointed to Maryland's 2012 adoption of mandatory reporting as precedent.  

ElderAbuseHearing-CoChairsThe interaction between panelists and legislators was robust. For example, Committee Co-Chair Steve Samuelson (in the photo on the right, seated next to Chairman Tim Hennessey) asked whether agents under powers of attorney should be required to file annual reports to facilitate greater accountability.  Representative Stephen McCarter asked about the practicality of "bonding" for agents using POAs. Representative Harold English had a detailed list, including the possibility of "payback" to fund investigative services and mandatory "recording" of current documents in order to make it clearer about which POAs are "in effect." He also expressed concern about annuity sales to elders.      

Draft legislation updating Pennsylvania's Older Adult Protective Services Act is expected to circulate for comment later this month.  

Special thanks to Eric Kovac from the Pennsylvania Bankers Association for sharing copies of his "insider" photos from the hearing. 

December 13, 2013 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, December 12, 2013

Working Paper: Older Adult Debt & Financial Frailty

From the University of Michigan Retirement Research Center, a paper on "Older Adult Debt and Financial Frailty" by  Annamaria Lusardi (George Washington Univ. of Business) and Olivia Mitchell (Wharton, Univ. of Penn.).  The authors compare data from three different time periods to analyze older persons' debt, debt management practices and corresponding potential for financial insecurity.  Key findings include:

  • Older Americans now on the verge of retirement are more likely to have substantial debt than in the past.  "Median debt for those age 56-61 has more than quadrupled, from about $6,200 in 1992 to $28,300 in 2008 (in 2012 dollars)."
  • Housing purchased with small down payments and subject to large mortgages are key reasons for higher debt for Boomer retirees.
  • Income, level of education, marriage status, race, number of children, health, were also factors identified as affecting risk of financial insecurity after retirement. 

One sentence that particularly stood out: "Baby Boomers are more likely to have engaged in expensive borrowing practices." 

December 12, 2013 in Property Management, Retirement, Statistics | Permalink | Comments (0) | TrackBack (0)

Friday, December 6, 2013

Elder Dispute Resolution Resources

A recent issue of the ABA's Dispute Resolution Magazine (Fall 2013) included an article on "Elder Mediation: Coming of Age," authored by two mediation trainers, that tracks the growth of mediation for elder disputes in a variety of settings.  The authors conclude: "Skilled, dedicated professionals can help parties find paths to agreements on some of the toughest and most emotional issues that families face." 

Included within the article was a listing of elder dispute resolution resources:

Hat tip to my colleague at Penn State Dickinson, Professor Nancy Welsh, for sharing a copy of the issue.  Nancy is co-chair for the editorial board for Dispute Resolution Magazine.

December 6, 2013 in Consumer Information, Health Care/Long Term Care, Property Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 2013

Laws Mandating Oversight for Management of Resident Trust Accounts?

USA Today continues reporting on criminal misuse of resident funds held in accounts at nursing homes, pointing to the lack of clear laws requiring faculities to conduct audits or other oversight systems for resident accounts: 

"Federal law provides the regulatory framework for the nation's 16,000 nursing homes, which have to meet an array of standards to participate in Medicare and Medicaid. Federal rules do not require audits for resident trust fund accounts, and most states take the same approach.

 

The U.S. Centers for Medicare and Medicaid Services, the federal agency responsible for nursing home regulation, is considering whether additional oversight is needed to address theft and mismanagement of residents' funds.

 

 'We are aware of this situation and are reviewing the (inspection) procedures used to detect these kinds of problems,' agency spokesman Aaron Albright said when asked about USA TODAY's findings. 'CMS takes safeguarding nursing home patients very seriously.'"

 

December 3, 2013 in Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

State POA Laws: The Potential for Problems with Powers of Attorney

Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.  

Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals.  For a number of years, states have been struggling to balance utility against risk.  

In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts.  Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute.  Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties.  The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.

Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends. 

Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA),  which superseded prior uniform law proposals.  The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:

"The UPOAA seeks 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 for financial abuse of incapacitated individuals.  It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."

Adoption of the UPOAA has been fairly slow.  As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA. 

In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption.  In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and  used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.   

Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice  Debra Todd of the Pennsylvania Supreme Court.

In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties. 

The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons." 

By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney."  Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals.  I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse.  Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent.  Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.

October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Is Elder Law in the US Becoming Bifurcated Between Planning and Litigation Specialists?

This semester, I have had several practitioners as guest speakers in my Elder Law class at Penn State Law. (The students have been loving this -- real world advice!)  More than one speaker has mentioned that he or she does not handle litigated issues for clients.  One guest lawyer mentioned "no longer handling" contested guardianships. Along the same line, I recently ran into a former student who has an Elder Law practice and who told me that most of his work is handling contested matters, including litigation over what he described as financial abuse. 

That started me thinking. Is the specialized practice of Elder Law now branching into two subspecialties, litigation and planning? 

If so, there could be a variety of reasons for the split, including:

  • a growth in client base means the traditional Elder Law practitioner is too busy with "planning" clients, and can afford to turn away litigation;
  • challenges to state restrictions on Medicaid eligibility or other benefits can require litigation, including knowledge of class action suits;
  • there is more demand among individual clients for "litigated" outcomes, requiring courtroom skills (although I suspect that does not necessarily mean the disputes will result in actual trials, given the overall downward trend nationally in any civil case going to trial).

Of course, money is probably at the heart of the growth of both sides of the practice.  Some people use advance planning to address allocation of financial resources.  Other people may be taking "after the fact" routes to address lack of planning or, even, bad planning. 

Your thoughts?  Is there a growth in Elder Law practice -- is there a split between lawyers who do or don't handle litigation? 

October 22, 2013 in Legal Practice/Practice Management, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, October 10, 2013

Elder Law Scholarship Potpourri: Latest Articles on Reverse Mortgages

I have been seeing and hearing a fair number of inquiries about the effect of reverse mortgages on an individual's eligibility for Medicaid, with suggestions the answers differ both by type of reverse mortgage contract and by state.  That sparked my curiosity about whether there is emerging scholarship about reverse mortgages as a tool for financing long-term care.  Here are some of the articles I found, with a few notes about the substance:

Bradley Schwab, "The Birth of a Real Right: An Overview and Analysis of the Recent Revision of Book III, Title X of the Civil Code," 73 Louisiana Law Review 821 (2013):

The title of this article probably means a lot in Louisiana, but I have to say I would not have realized it was an entire article about annuity contracts, until my research discovered the author's conclusion for why annuity contracts are often "more appropriate than a reverse mortgage for those who eventually need long-term nursing home care."  An impressive analysis -- from a recent graduate.  Perhaps another example of an Elder Law student who "rocks?"

Paul Black, "Reverse Mortgages and the Current Financial Crisis," 8 NAELA Journal 87 (2012):

Starts with a detailed outline of the mechanics of reverse mortgages, before moving into analysis of the potential risks to borrowers, including predatory lending tactics, the recent prohibition on "bundling" of reverse mortgages with deferred annuities, and the potential for unintended consequences for Medicaid eligibility. Turns out the author, a 2010-11 Borchard Foundation Fellow, is a fairly recent graduate and this article is actually an expanded version of a paper he first wrote as a law student.  Another Elder Law student who "rocks?"

Andrew Hyer et al., "Paying for Long-Term Care in the Gem State," 48 Idaho Law Review 351 (2012):

 While surveying financing alternatives for long-term care in Idaho, the co-authors who are academics at Boise State, caution that studies suggesting use of reverse mortgages "saves" the state money on Medicaid. while interesting, could be based on out-of-date information.

It strikes me that I might be missing more recent analyses of reverse mortgages impacting Medicaid.  Please don't hesitate to send me links to thoughtful pieces.  

October 10, 2013 in Health Care/Long Term Care, Housing, Medicaid, Property Management | Permalink | Comments (0) | TrackBack (0)

Friday, September 27, 2013

Tools for Assisting Attorneys, Psychologists and Courts in Assessment of Client Capacity

Diminished-capacity-lawyers_tcm7-88823A frequent question is how well older adults are able to appreciate details and significance of  late-in-life financial transactions.  

For example, I just finished teaching a series of cases that ask students to evaluate the voidability of large end-of-life gifts made by older individuals, usually to persons who appear to be caregivers or recent "befrienders."  Were the transactions voluntary even if unwise, or were they the product of an unstable mind or undue influence?  Close calls on most of the cases.

The cases that interest me most were the ones where an attorney represented the older person during execution of the documents. In one case, the court commented that the attorney who completed the transaction met with the new client for an hour on a Sunday afternoon and performed a series of "tests" that satisfied the attorney about the client's capacity to complete transfers of the bulk of his real estate.  However, a geriatric psychiatrist who later evaluated the same individual, found the individual to have advanced dementia of an Alzheimer's Disease type and concluded the individual would not be able to understand the significance of the deed transfers signed earlier, even though he appeared to be "oriented as to time, place, and person."

Which professional's testimony carried the day? The court credited the attorney's testimony that his client was "lucid" while completing the documents in question, and pointed to the fact the doctor "conceded" that the individual had "moments of lucidity." 

Exactly what "tests" does a lawyer, any lawyer, use to evaluate cognitive function?  Perhaps every seasoned lawyer has a series of tried and true questions or techniques.  But I suspect that many lawyers rely more on instinct than tests, and certainly most transactions by older adults are not challenged.

Should lawyers go further to assess capacity? To help frame the discussion on whether and when to go more deeply into questions of capacity, guidelines are available. Members of the American Bar Association (ABA) and the American Psychological Association (APA) participated in an interdisciplinary task force, which led to three separate documents, including worksheets that may be useful in any assessment of capacity:

  • Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers
  • Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists
  • Judicial Determination of Capacity of Older Adults in Guardianship Proceedings: A Handbook for Judges

The good news is that all three documents are available on the internet.  The less good news is the documents are copyrighted and permission is needed to make additional copies for distribution to a group or audience.  The handbooks have been available since 2006.  Nonetheless, I suspect most attorneys, many psychologists, virtually all other medical professionals, and a heck of a lot of judges have never heard of the handbooks. 

Any opinions about the usefulness of these handbooks to practitioners?   

September 27, 2013 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Ethical Issues, Legal Practice/Practice Management, Property Management | Permalink | Comments (1) | TrackBack (0)

Sunday, September 15, 2013

New York City, Two Wills, 100+ Year-Old Testator, $300 Million Estate: Can You Guess Where This is Going?

Bingo.  Although this time the court case (cases?) is not about Brooke Astor.  This time the tragic subject is another heiress, the reclusive Huguette Clark.  The will contest case is scheduled to start jury selection on September 17. 

Thanks to Professor Ann Murphy, Gonzaga School of Law, for pointing us to the September 15 New York Times article by Anemona Hartocollis, "The Two Wills of the Heiress Huguette Clark."

September 15, 2013 in Estates and Trusts, Ethical Issues, Property Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 20, 2013

Uniform Law Commission: Real Property Transfer on Death Act

Completed by the Uniform Law Commission in 2009, and thus opening the window for adoption by state legislatures, the Uniform Real Property Transfer on Death Act allows an owner of real property to pass the property directly to a beneficiary on the owner's death, without probate.  The property passes by means of a recorded TOD or "Transfer on Death" deed.  This seems like an uncontroversial and helpful clarification in the law.  Any comments, especially from those who see potential problems? (Add your comments below -- I'll post them soon.)

Jurisdictions that have so far adopted the law are Hawaii, Illinois, Nebraska, Nevada, New Mexico, North Dakota, Oregon, Virginia, and most recently, D.C.  Legislation is also pending in Alaska, Connecticut, Maryland, South Dakota, Washington and West Virginia. 

In D.C., there is an Estates, Trust & Probate Bar Lunch program scheduled to discuss the new law, for September 18, 2013.

-- Katherine C. Pearson, Penn State Law

August 20, 2013 in Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Friday, August 16, 2013

Retired -- Is That a "Dirty" Word?

Recently I was having lunch with a group of friends.  One friend, younger than me, commented that she didn't like to tell people she was "retired," because it made her feel too old.  We laughed and asked, "Would it be better to tell people you are 'unemployed'?"  We all agreed that probably sounded worse. 

But, is "retired" really such a dirty word?  For some, perhaps yes.  For example, AARP used to be an acronym for the "American Association of Retired Persons" but in 1999 the organization changed its official name to  AARP, and membership is open to anyone 50 or over, regardless of working status.

Fortunately for researchers, "retired" and "retirement" are still viable terms that generate a lot of important issues.  One of my favorite researchers is Gordon L. Clark at Oxford, who writes and speaks clearly and thoughtfully on a number of financial issues, including retirement.  His co-authored Oxford Handbook of Pensions and Retirement Income sits on my quick access shelf.

Another resource for statistics and commentary on retirement-related issues is the University of Michigan's Retirement Research Center. Check their website for the latest publications, including data on the impact of proposed changes in Social Security rules on individuals' work and retirement decisions.      

- Katherine C. Pearson, Penn State Law 

August 16, 2013 in Property Management, Retirement, Social Security | Permalink | Comments (0) | TrackBack (0)