Tuesday, May 17, 2016
I've reached that annual ritual known as "let's clean off my desk because that is more fun than grading exams." Always a good opportunity to find a few treasures that escaped my closer attention during the academic year. And along that line, I was intrigued to find the two-part series on "Alternative Litigation Finance," written by Holland and Knight attorneys Robert Barton and Wendy Walker.
What Is Alternative Litigation Finance? The structure of a litigation finance deal can vary significantly depending on the type of case, the company involved, the stage of the case when funding is sought, the amount of money requested, and many other factors. At its core, though, ALF is the advancement of funds to attorneys or clients by a thirdparty company to pay legal fees and costs related to litigation. In general, a litigation funder makes a return on the funds, whether through interest earned over the life of the advance, a multiple of the advanced amount, or a percentage of the recovery paid to the client at the conclusion of the matter. The transaction is typically nonrecourse, meaning the company only recovers to the extent that the client recovers. The funder does not look to the client’s other assets, beyond the settlement or judgment, to satisfy the repayment of the funds. In some circumstances, however, the client may offer additional collateral to secure the amount needed.
To provide maximum protection for the client, at the outset of a new matter, an attorney should request a written confidentiality agreement among the funder, the client, and the attorney. The agreement should provide the express recognition that any nonprivileged, but confidential, information that is shared is done so with the intent to maintain its confidential nature. Although not a full guarantee against future disclosure, such an agreement does demonstrate the intention of the parties and has been a persuasive argument to courts evaluating disputed discovery issues.
These articles originally appeared in the ABA's publication, Probate and Property, with the second of the two articles published in the November/December 2015 issue. (The good news is that by waiting a bit, both of these articles are now available on the web, and not just through the ABA subscription.)
Wednesday, May 11, 2016
On May 6, 2016, the New York Times ran an article by Paula Span for the New Old Age series, Finding Out Your Power of Attorney Is Powerless. Experienced elder law attorneys are unlikely to be surprised by the point made in the article: financial institutions want customers to use their own powers of attorney, not one drafted by the customer's lawyer. The article notes this is "very unwelcome news, because by now the older account holders may not be competent to sign legal forms." One frustrated customer offered this insight "[w]e have a power of attorney, but we can’t use it ... People sign these anticipating incapacity. Once incapacity arrives, it’s too late to sign another one.”
As the article notes, this isn't a huge revelation to elder law attorneys but "[i]t’s not clear how often similar scenarios, with their Catch-22 absurdity, take place." The article offers the other side of the issue, from the financial institution's perspective, since these institutions are in charge of the customer's money, and everyone knows about the increase in financial exploitation, issues with diminished capacity of customers and family members who are the perpetrators. But notes one expert, "banks have other motivations, too. 'Typically, when they’re insisting on their own forms, they’re concerned about liability,'”
The article offers suggestions-have a lawyer intercede with the financial institution or be proactive and "ask... a brokerage or bank if it requires its own durable power of attorney document and, if it does, having your relatives sign it when they are still capable of doing so. You’ll have to do this for every institution where they have an account." There is a big caveat with this second suggestion, according to the article, quoting Craig Reaves, a past president of NAELA: "read those bank forms carefully or have a lawyer review them, Mr. Reaves advised. They can contain disadvantageous indemnity or arbitration clauses, or provisions that contradict the individual’s general power of attorney. In such cases, 'I’ll tell clients not to sign, and we’ll fight the fight,' he said." Some family members caught in the catch-22 came up with their own solutions, such as opening accounts at other financial institutions or waiting until the parent is having a "lucid moment" to sign the bank's form.
It's hard to explain to students why a financial institution refuses to accept a legally valid DPOA drawn by an attorney. This article sheds some light on the problem, but clearly, it's still a problem.
Monday, May 9, 2016
The May 2016 issue of the South Carolina Bar Journal, SC Lawyer contains the article, Quick and Dirty Tips to Prevent Power of Attorney Abuse. The author offers several tips, starting with meeting with the client alone, determine if the client has capacity to sign the DPOA, ascertain the client's goals and expectations, "name an honest, trustworthy and trusted agent" (the author suggests the attorney "[google the agent and check your local court judgment index"); consider co-agents; use a springing POA; include an accounting provision to require the agent "to account in some fashion to a family member(s) or other trusted individual. It can be as formal or as informal as the principal desires. In that way there is another person informed about the principal’s financial situation" and even using a "cooling off" period for the client to think further before signing the DPOA.
The article also covers actions when the agent misuses the DPOA. The article concludes
There is no easy answer to the problem of elder financial abuse. There is no silver bullet. Elder financial abuse is a problem that is only going to get worse. We as attorneys can’t prevent all financial abuse, but we need to be aware of, and adopt, measures that reduce the risk of durable power of attorney abuse. The threat can never be eliminated, but with communication and education, it can be minimized.
Thanks to the article's author, Michael J. Polk, for sending me the link to the article.
May 9, 2016 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Sunday, April 24, 2016
Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25 minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond. (You may have to give this time to load, as it is an embedded video file).
For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse."
April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, April 18, 2016
Arizona State University is considering plans to develop a Continuing Care Retirement Community (CCRC) near its main campus, working with Pacific Retirement Services (based in Oregon) as a co-developer and operator. From the announcement:
ASU is working with the ASU Foundation, who has hired Pacific Retirement Services to co-develop and operate the project. Artistic renderings depict a gleaming a 20-story building with 291 independent, assisted, memory care and skilled nursing units....
ASU is currently in discussion with Mayo Clinic, Osher Lifelong Learning Institute and ASU’s nursing, health, innovation, nutrition, arts and design and teaching programs as potential partners. Other amenities include casual dining, health club, game room, estate planning, concierge service, classroom and intergenerational childcare programming....
ASU is currently conducting a marketing and feasibility study about the facility, which would ground lease approval from the Arizona Board of Regents. If approved, construction could begin in 2018 and begin accepting residents in 2020.
For more, read Arizona State University to Build CCRC on Campus, from Senior Living publication.
My thanks to Karen Miller, J.D., who lives in a successful CCRC affiliated with the University of Florida.
Addendum: After posting the above information about ASU's possible project, I noticed that Arizona State University is a named co-sponsor of what appears to be three-day education and business development forum called the ASU-GSV Summit. Bill Gates is a keynote speaker. What struck me as interesting is the summit, from April 18-20, is being held in California -- San Diego to be exact -- and not in ASU's home state. As someone who grew up in the Valley of the Sun, I've been watching the increasingly entrepreneurial spirit of ASU for some time, and this is more evidence.
Friday, April 15, 2016
The New York Times ran a story recently about a new trend in housing for elders---multigenerational homes. Multigenerational Homes That Fit Just Right are homes that, as the name implies, are designed for multiple generations of a family that live in the same house. "[A] growing number of families ... are seeking specially designed homes that can accommodate aging parents, grown children and even boomerang children under the same roof. The number of Americans living in multigenerational households — defined, generally, as homes with more than one adult generation — rose to 56.8 million in 2012, or about 18.1 percent of the total population, from 46.6 million, or 15.5 percent of the population in 2007, according to the latest data from Pew Research. By comparison, an estimated 28 million, or 12 percent, lived in such households in 1980."
But how does one accommodate family dynamics when living together under one roof? In fact, the story notes, many of the multigenerational households do live in an "ordinary" home. But, it appears that the building industry has developed an option that is catching on, "responding quickly to this shifting demand by creating homes specifically intended for such families." For example, one builder's homes "don’t offer just a spare bedroom suite or a “granny hut” that sits separately on the property or a room above a garage. The NextGen designs provide a separate entranceway, bedroom, living space, bathroom, kitchenette, laundry facilities and, in some cases, even separate temperature controls and separate garages with a lockable entrance to the main house. Family members can live under the same roof and not see one another for days if they so choose."
The article explains the drivers for the trend, baby boomers (of course), the 2008 recession, tough job market and higher rents facing millenials, the boomerang children and again, those baby boomers, "[m]any [of whom] are planning ahead in hopes that they can devote more attention to their children and grandchildren — and spend little, if any, time in a nursing home."
Expect to see more of these multigenerational homes over the next years. From a legal perspective, it seems that ground rules, a family contract and a care would be important to the success of the venture (whose turn is it to cut the grass this week? No loud music after 11 p.m. as a couple of an examples). What an interesting concept of the market changing to accommodate demand.
Wednesday, April 6, 2016
A specialized area of "law and aging" is accountability for retirement investments, including public employee pension funds. In Massachusetts there has been a long feud between the Boston Globe media company and the Massachusetts Bay Retirement Authority (MTBA) Pension Fund over access to pension records, especially after the loss of some $25 million in employee retirements assets following the collapse of a hedge fund holding MTBA money. Last month, a Massachusetts judge rejected key arguments by the MTBA's that the records in question were not subject to state public records law:
"The Court will ALLOW the Globe's motion for summary judgment and DENY the Retirement Board's cross-motion. The Retirement Board's preliminary assertions that the Supreme Judicial Court has already resolved the central question of statutory interpretation in the Board's favor, and that in any case the Globe may not press its claims because it failed to join other necessary parties, are both incorrect. On the merits, the Court concludes that the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions. The Board's assertion that the 2013 statutory amendment only applies to records created after its effective date is also incorrect."
For more on the reasoning, see Boston Globe Media Partners, LLC v. Retirement Bd. of Massachusetts Bay Transp. Authority Retirement Fund, 2016 WL 915330 (Superior Ct. Suffolk County, Mass, March 9, 2016).
See also Boston Globe media reports, including Judge Calls for Open MBTA Pension Files, detailing some of the related allegations by whistleblower Harry Markopolos and Boston University finance professor Mark Williams. See also a consulting firm's March 9, 2016 Report for the MBTA that concluded MBTA had accurately reported accounting data on the pension funds during the years in question.
Tuesday, April 5, 2016
The Washington Post ran an interesting piece recently, using one couple's history of retirement savings to demonstrate the benefits from coordination and, perhaps, redistribution of assets or payments in advance of actual retirement. The couple then invited commentary from two different financial advisers. From one adviser, they learned:
Having different types of savings accounts can give the couple more control over their tax bill when they retire, [Financial Adviser] Sewell says. Money withdrawn from the tax-deferred accounts, such as the TSPs and the traditional IRAs, will be taxed as ordinary income when retirement withdrawals are made – a tax rate that could be as high as 39.6 percent for workers in the top tax bracket. The Roth IRA, on the other hand, can provide tax-free income in retirement. And money withdrawn from their taxable investing account could be taxed at lower rates, such as the long-term capital gains rate of 20 percent, she says. Adding to that account over time can also provide a separate pool of savings and allow them to hold off on tapping their tax-deferred accounts until they are required to do so at age 70.5, Sewell says. That would give those retirement savings more time to grow tax-free.
They also learned:
But consolidating accounts would make it easier for the couple to track where their money is invested and what fees they are paying, Porter says. They can look into rolling over some or all of their IRA savings into their TSP accounts, which typically have more affordable index-based investment options, Porter says. For example, the average expense ratio for a TSP fund, including target-date funds, stock funds and bond funds, was 0.029 percent in 2015, or 29 cents for every $1,000 invested. In contrast, the average 401(k) investor pays an expense ratio of 0.89 percent, or $8.90 for every $1,000 invested, according to a report by BrightScope and the Investment Company Institute. “I have not seen a lower cost plan, so I think you can’t beat that,” Sewell says.
Our thanks to George Washington Law Professor Naomi Cahn for sending this link.
Tuesday, March 29, 2016
Roz Chast's memoir of life with her parents as they aged, Can't We Talk About Something More Pleasant?, uses humor to explore the complicated issues that can arise when aging parents and their adult children try to address physical frailty and financial complexities in the "third age" of life. Another look, equally realistic and also ruefully humorous, comes from William Power, writing for the Wall Street Journal in "The Difficult, Delicate Untangling of Our Parents' Financial Lives." Thanks to the WSJ for making this an unlocked article for digital access!
Power begins with that ever-humbling attempt to use "help lines" to solve problems by phone:
“No, no, no, don’t transfer me to her again,” pleads my wife. It is a typically frustrating moment in our family crisis, one that many grown children will have to face, ready or not: We are people in our 50s who are unraveling the finances of parents who can no longer do it themselves.
My wife, Julie, is on the phone with the company where her 82-year-old dad had once worked, trying to change the direct deposit of his pension checks to a bank closer to the assisted-living home where he and his wife now live, which is near us in Pennsylvania. Again and again, she is transferred to the person in charge, “Rose.” And every time, the same recording: “This number has been disconnected.”
Power's account is punctuated by practical advice for others, including the importance of teamwork, involving both family members and others, in tackling the issues, as well as the use of key document-based tools, including Powers of Attorney, or as he stresses, "Repeat after Me: POA, POA, POA."
My thanks to Amy Bartylla, a long-time friend, for this article referral.
March 29, 2016 in Advance Directives/End-of-Life, Consumer Information, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management | Permalink | Comments (0)
Sunday, March 20, 2016
On March 16, 2016, the Florida Office of Insurance Regulation issued suspension orders affecting University Village, a Continuing Care Retirement Community (CCRC) in Tampa, Florida. Long-Term Living publication reports:
The first order states the facility was acquired illegally. IMH Healthcare, LLC, the general partner of the new ownership, does not have approval to operate as a licensed CCRC provider.
The second order makes several allegations against University Village for violating provisions of Florida’s Insurance Code for:
failing to comply with the OIR’s target examination and filing false information;
failing to fulfill statutory and contractual obligations to residents, estates of former residents and prospective residents, including failing to pay more than $4 million in refunds owed to residents;
continuing to accept new residents while being financially insolvent; and
engaging in fraudulent or dishonest management practices.
For more on the OIR action, read Tampa Times coverage, "Florida Officials Move to Suspend Tampa's University Village Retirement Home."
The events that led to this state action are somewhat unusual. For earlier reports on the long-simmering issues, see Channel 8 News Report from September 2015: "Owner Claims, State Lying, Retirees Suffer." See also a Tampa Bay Times article from February 2015, "State Looks into Alleged Financial Problems at Tampa Retirement Community."
Tuesday, February 23, 2016
Stakeholders and Policymakers Collaborate on Proposals for Better Approach to Financing Long-Term Care
On February 22, 2016, a diverse collection of individuals, representing a broad array of stakeholders interested in long-term care, released their report and recommendations for major changes. In the final report of the Long-Term Care Financing Collaborative (LTCFC) they propose:
•Clear private and public roles for long-term care financing
•A new universal catastrophic long-term care insurance program. This would shift today’s welfare-based system to an insurance model.
•Redefining Medicaid LTSS to empower greater autonomy and choice in services and settings.
•Encouraging private long-term care insurance initiatives to lower cost and increase enrollment.
•Increasing retirement savings and improving public education on long-term care costs and needs.
ElderLawGuy Jeff Marshall wrote to supplement this post by providing details of the report, written by Howard Glecknan of the Utban Institute. Thanks, Jeff!
Members of the Collaborative included:
Gretchen Alkema, The SCAN Foundation; Robert Blancato, Elder Justice Coalition; Sheila Burke, Harvard Kennedy School; Strategic Advisor, Baker, Donelson, Bearman, Caldwell & Berkowitz; Stuart Butler, The Brookings Institution; Marc Cohen, LifePlans, Inc.; Susan Coronel, America’s Health Insurance Plans (AHIP); John Erickson, Erickson Living; Mike Fogarty, former CEO, Oklahoma Health Care Authority; William Galston, The Brookings Institution; Howard Gleckman, Urban Institute; Lee Goldberg, The Pew Charitable Trusts; Jennie Chin Hansen, immediate past CEO, American Geriatrics Society; Ron Pollack, Families USA; Don Redfoot, Consultant; John Rother, National Coalition on Healthcare; Nelson Sabatini, The Artemis Group; Dennis G. Smith, Dentons US LLP; Ron Soloway, UJA-Federation of New York (retired); Richard Teske (1949-2014), Former U.S. Health and Human Services Official; Benjamin Veghte, National Academy of Social Insurance; Paul Van de Water, Center on Budget & Policy Priorities (CBPP); Audrey Weiner, Jewish Home Lifecare, immediate past Chair, LeadingAge; Jonathan Westin, The Jewish Federations of North America (JFNA); Gail Wilensky, Project HOPE;Caryn Hederman, Project Director, Convergence Center for Policy Resolution; Allen Schmitz, Technical Advisor to the Collaborative, Milliman, Inc.
Tuesday, February 2, 2016
Prolific scholar Richard Kaplan, from Illinois Law, has a new article with a clever title. Here's a taste from the abstract for “What Now? A Boomer’s Baedeker for the Distribution Phase of Defined Contribution Retirement Plans:”
Baby Boomers head into retirement with various retirement-oriented savings accounts, including 401(k) plans and IRAs, but no clear pathway to utilizing the funds in these accounts. This Article analyzes the major factors and statutory regimes that apply to the distribution or “decumulation” phase of defined contribution retirement arrangements. It begins by examining the illusion of wealth that these largely tax-deferred plans foster and then considers how the funds in those plans can be used to: (1) create regular income; (2) pay for retirement health care costs, including long-term care; (3) make charitable donations; and (4) provide resources to those who survive the owners of these plans.
This very practical article appears in NYU's Review of Employee Benefits and Executive Compensation, Chapter 4, for 2015.
Thursday, January 28, 2016
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, January 22, 2016
In South Korea, "filial duty" is apparently a hot topic, as reflected by a recent Korean Supreme Court ruling and a public survey. And it is more than a theoretical concept or moral obligation, with "contract" law principles now coming into play. As reported in English by the Korea Herald, published on December 30, 2015:
More than 75 percent of South Koreans surveyed by a local pollster think “filial duty contracts” -- a legal document that makes it mandatory for all grown children to financially and emotionally care for their aged parents -- are necessary should they receive any gifts such as real estate or stocks from them.
The survey results were released two days after the Supreme Court ruled in favor of an elderly father who filed a suit against his son, who, in spite of signing a filial duty contract, did not care for his ill mother as promised after receiving a personal estate. The court acknowledged the legality of the document and ruled the son must return the property to his father, as the property was gifted in exchange for his support.
Although "filial duty" has long been considered an important, traditional value in Korea, "the nation's changing family structure" and high costs for housing and education apparently have made it more difficult for elderly Koreans to rely on their children for voluntary care. The survey, of 567 Koreans, showed strong support for greater enforcement of "filial duty contracts."
Under the current law, a donor may rescind a gift contract if the recipient committed an act of crime against the donor, or if “the beneficiary is obliged to support the donor but does not do so.” However, the law also states that rescinding a gift contract does not have any effect once the gift has already been given to the beneficiary.
For more details, including a report on a pending bill that would give "Korean parents the right to sue their children in case of mistreatment and to ask them to return any gifts," read "77% of South Koreans See Need for 'Filial Duty Contracts.'"
Thursday, December 31, 2015
The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions:
Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....
To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.
The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.
In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary. Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:
Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.
The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.
Certainly I understand industry hostility to more regulations. At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting. A "carrot" rather than a "stick" to encourage reporting.
Our thanks to University of Illinois Professor Dick Kaplan for sharing this article.
Monday, December 28, 2015
Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:
- Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients. Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
- New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.
The New Jersey court, writing unanimously, observed:
The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.
In a News-Press article about the Florida disbarment, Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations.
Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged.
Sunday, December 13, 2015
I don't know whether the issue of elder abuse is just getting more coverage or whether cases of elder abuse are increasing. We all know that elder abuse is a global issue. I ran across a few recent articles about elder abuse that I wanted to share in this post.
First, The Conversation published Why are we abusing our parents? The ugly facts of family violence and ageism . The article opens with the story of Gwen, who was being abused by her son. The article suggests that "[o]lder people experiencing abuse from family members share the same experience as women suffering intimate partner violence in having someone close to them, whom they ought to be able to trust, perniciously erode their sense of safety and wellbeing through excessive use of power and control." But, when its a child who is the perpetrator, "feelings of parental love and responsibility coupled with shame and guilt for having “failed” as a parent often stop the parent from seeking help and protecting themselves." Turning to Australia, the article examines the prevalence and frequency of multiple abuses of a victim. "For example, financial abuse was coupled with another form of abuse in 65% of cases." Linking abuse and ageism, the article offers that "[promoting the dignity and inherent value of older people is a crucial component of elder abuse prevention." The article calls for educating professionals, elders and society about the issues.
Next, a newspaper in Bend, Oregon ran the story, Financial exploitation hits close. Report: Most financial exploitation done by someone the victim trusts. "A report by Oregon’s Office of Adult Abuse Prevention and Investigations found nearly three-fourths of Central Oregon’s financial-exploitation cases involved someone known or trusted by the victim." The cases in Oregon are similar to what is happening across the country:"[s]tate investigators recorded 1,059 cases in which people 65 or older, who lived on their own or with a loved a one, were victims of theft or someone had misused their money, medication or property...Financial exploitation for seniors living outside of a long-term care facility was the most common type of elder abuse for the third year running in 2014."
Finally (but finally only for this post; I have no doubt that there will be more posts on elder abuse, unfortunately) CNBC ran a story on elder abuse with a headline that caused me to do a double-take. Why seniors don't fear elder financial abuse discusses a new report from Allianz Life that "queried over 1,200 seniors and more than 1,000 people ages 40 to 64 about seniors' finances and found that among the seniors, 89 percent were confident they could handle their money on their own. At the same time, 22 percent of the younger group said they were not confident in their own ability to recognize elder financial abuse, or were not sure."
The CNBC story indicates that family members worry more about the elder being a victim than the elder does. "The confidence of the seniors may make them even more vulnerable to financial scams or financial abuse by friends or family members, said Walter White, president and CEO of Allianz Life. ..."Everything we understand about the prevalence of the issue would suggest that confidence is misplaced," he said." The CNBC story cites some other reports that provide good statistics and discusses the connection between financial exploitation and ultimately a nursing home placement.
That kind of loss can devastate a person's finances, and elder financial abuse is often a major reason why seniors wind up in nursing homes and assisted living facilities on public assistance. Dr. Mark Lachs, co-chief of the division of geriatrics and gerontology at Weill Medical College, has studied the issue and found that an older person who falls victim to abuse, including financial exploitation, is four times more likely to be placed in a nursing home, after adjusting for other known risk factors for nursing home placement.
Discussing the reasons a victim may fail to report financial exploitation, the story adds overconfidence as a reason, citing to the Allianz report. The CNBC story concludes with some links to resources to help fight elder abuse.
December 13, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, Retirement, Statistics | Permalink | Comments (0)
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, December 9, 2015
Here's a summary of interesting, key findings from the complicated case of Moylan v. Citizens Sec. Bank, an "elder abuse" and wrongful termination claim with a long litigation history in Guam:
- Bank Comptroller Moylan realizes his grandparents have certificate of deposit accounts in his bank, with assets totaling more than $1 million.
- He notes that when the accounts rollover, they are no longer in the names of his grandparents, but rather solely in the names of two individuals identified as "caretakers" for the grandparents.
- Moylan proceeds to "investigate further" and concludes that multiple transactions on the accounts were suspicious, given his "personal knowledge of his Grandparents' advanced age and deteriorating mental condition."
- Moylan discusses his findings with his brother, an attorney, thus revealing bank account information without getting the permission of his Grandparents or the "caretakers" who were listed on the accounts.
- The brother advises that the findings may constitute "elder abuse" and thus trigger a mandatory duty to report the activity to Adult Protective Services.
- Moylan, fearing he may lose his bank job, encourages his father to make the report -- thus again sharing banking information without the consent of the listed account holders, the Grandparents and their caretakers.
Eventually, a guardians is appointed for the grandparents, the bank becomes a subject of the guardian's complaint about handling of the grandparents' accounts, the caretakers (one of whom is a family member) object to Moylan's "misuse" of his access to account information as a bank employee -- and, lo and behold, Moylan is fired in 2007. Moylan challenged his termination as wrongful.
In 2015, after more than 7 years of litigation in the courts below, the Supreme Court of Guam overturned summary judgment in favor of the bank on Moylan's wrongful termination claim. That's the good news for Moylan, as the Court recognizes a public policy exception to the "at will" nature of his employment contract:
Because the object and policy of the [Adult Protective Services Act] is to protect the elderly and disabled adults, the reporting requirements of 10 GCA §21003(a) should be construed liberally in favor of promoting the reporting of suspected abuse. This approach is consistent with the fact that the legislature chose to include the term “immediately” instead of a specified reporting deadline. Therefore, we hold that in the limited context of the facts of this case, Scott's oral reporting within seven days after the discovery of alleged abuse qualifies as sufficiently immediate....
Termination motivated by Scott's mandatory reporting would jeopardize the public policy to protect elderly and disabled adults from abuse because it would discourage future reporting. Scott presented evidence that at least one Bank executive knew that Scott had caused a report to APS before Scott was terminated.
Under Guam law, mandatory reporting of suspected elder abuse applies to "banking and financial institution personnel." 10 GCA §21003(b).
The bad news is the reversal sends the case back to the trial court for "further proceedings." The full opinion by the Supreme Court of Guam, issued November 20, 2015, linked above, is well worth reading, as it demonstrates both weaknesses and strengths of statutory attempts to mandate that banks report suspected elder abuse.
Thursday, November 5, 2015
Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?
In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence." Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear.
In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012, after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer:
Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.
"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.