Friday, August 28, 2015

Who "Owns" Funds in Joint Accounts -- and Why Might It Matter for Medicaid Purposes?

Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father.  Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding. 

The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:

"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."

Continue reading

August 28, 2015 in Estates and Trusts, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 26, 2015

LegalZoom Touts "Legal Advice"

Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents.  LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies. 

Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning.  Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice."  Here's a link to one recent example.   

The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following: 

"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com." 

Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state.  The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade CommissionLegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers. 

August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 24, 2015

Must Courts Honor Alleged Incapacitated Person's Nominee for Guardian?

In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians.  The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator. 

On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians.  In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference. 

Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian.  While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice.  Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .

Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian. 

August 24, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Friday, August 14, 2015

Should "Springing" Powers of Attorney (Once Again) Be the Norm?

In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:

Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.

For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.

August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, August 13, 2015

North Carolina Appellate Court Ruling Permits "Membership Fee" in Condo-Continuing Care Contracts

Earlier this summer, a North Carolina appellate court reversed a trial court's finding that "membership fees" tied to condominium purchases in a retirement community were "unconscionable." In a class action suit filed by residents against Cedars of Chapel Hill LLC., this summer's ruling permits the defendant company to continue to market and sell its retirement condos as "fee simple" units  in combination with "continuing care member" contracts, although the court also remanded for a jury trial before the lower court.

In a highly technical ruling that examined state real estate transfer fee rules, the North Carolina's  marketable title act, and arguments under the common law about  unequal bargaining power, the appellate court rejected summary judgment in favor of the residents.  The court addressed allegations of both procedural and substantive unconscionability in the contracting process.  The court explained in part:

Substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms.” … The terms must be “so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.” Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). Plaintiffs, in raising this issue, contended that the fees in question were “exorbitantly high,” that the documents at issue were “decidedly one-sided in favor of the Company,” and that plaintiffs lacked “ability ... to negotiate any of the terms of the covenants and conditions in question in this case.” Plaintiffs further noted that the market for CCRCs in Chapel Hill is very small, leaving few alternatives.

 

…[W]e find plaintiffs' arguments unavailing. We recently held that “the times in which consumer contracts were anything other than adhesive are long past.” Torrence v. Nationwide Budget Fin., ––– N.C.App. ––––, ––––, 753 S.E.2d 802, 812 (quoting AT&T Mobility LLC v. Concepcion, –––U.S. ––––, ––––, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742, 755 (2011)), review denied, cert. denied, 367 N.C. 505, 759 S.E.2d 88 (2014). The mere fact that plaintiffs lacked the ability to negotiate contract terms does not create substantive unconscionability, nor does the fact that defendants were among the only providers of CCRC facilities. We hold that plaintiffs did not adequately demonstrate unconscionability as a matter of law, and that a genuine issue of material fact existed as to unconscionability, which precluded summary judgment.

For more of this ruling, see Wilner v. Cedars of Chapel Hill LLC., 773 S.E 2d. 333 (N.C. Ct. App., 2015).

For reactions from the parties' representatives, see NC Appeals Court Ruling Favors Cedars of Chapel Hill Condo Fees. 

For an additional, interesting discussion of business perspectives on retirement developer control, written prior to the most recent appellate court ruling, see Two Pitfalls of Leveraging Developer Influence, from a North Carolina law firm blog.

This case -- revealing the range of complexities in contracts for senior housing and services --  is another example of why I added "Contracts" law to my teaching package, with elder law!

August 13, 2015 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 31, 2015

Which is More Terrifying? "Dying Early" or "Living Long" (and Doing Financial Planning Necessary for the Latter)?

The New York Times recently carried a column that probably hit home with many -- if, that is, one could bring oneself to read it.  While some people keep postponing "the conversation" discussion about how they want to die, there is plenty of evidence many people are also avoidant of conversations about financial planning for a long life. 

Educating consumers to be better purchasers seems a sensible idea, but an example from recent history illustrates the problem with that. For a long time, the simple investment advice given to consumers has been “buy an index fund.” Index funds are such standardized products — mirroring the Standard & Poor’s 500-stock index does not require much management — that just about all of them were initially low cost while offering wonderful diversification.

 

Consumers have been buying index funds, and the market has responded by providing hundreds of them. Nearly all E.T.F.s are index funds.

 

But the market has also responded by charging high fees for this standardized product. In 2004, Ali Hortacsu and Chad Syverson, economists at the University of Chicago, found that index funds had as much variability in fees as their more labor-intensive actively managed counterparts. And these fees are nothing to be scoffed at — paying 1 percent more every single year in fees can compound over a lifetime to noticeably lower returns.

For more on the problem with financial advice -- with encouragement to "face up to something [you too] may have been dreading," read Why Investing Is So Complicated, and How to Make it Simpler, by Sendhil Mullainathan. 

My thanks to Prof. Laurel Terry and Jack Bennett, Esq. for sharing this column.

July 31, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Estates and Trusts, Property Management, Retirement | Permalink | Comments (0)

Wednesday, July 29, 2015

AARP & ABA Join Forces on "Checklist for Family Caregivers"

Sally Hurme, J.D., adds another useful book to her long list of consumer-friendly publications.  In Checklist for Family Caregivers, published and marketed jointly by AARP and the American Bar Association, offers "to do" and "action" checklists to guide family members as key providers of care and assistance for seniors.  Each topic is introduced by brief narratives of explanation, often with an emphasis on legal implications of decision-making.  For example Chapter 6 is on "Deciphering Contracts," and describes different components of family caregiver agreements, home care service agreements (whether directly or through an agency), assisted living agreements, and skilled nursing care contracts, plus a few points about long-term care insurance policies. 

Think of this book as the starting place -- and a wonderful opportunity to organize thoughts for meetings with doctors, agencies, social workers or lawyers.  More information about the book is available on the ABA webpages (with a member discount, and "bulk discounts are available"), on AARP's webpage, or directly through Amazon. 

July 29, 2015 in Books, Consumer Information, Health Care/Long Term Care, Housing, Property Management | Permalink | Comments (0)

Thursday, July 23, 2015

Nevada Supreme Court's Commission Undertakes Review of Adult Guardianships

As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada.  In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.

The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county.  Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations. 

The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail.  Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:  

July 23, 2015 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, July 16, 2015

Highlights from Upcoming Pennsylvania Elder Law Institute on July 23 & 24

Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg. 

Highlights include:

  • "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
  • How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
  • Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
  • LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
  • Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
  • Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
  • A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)

There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).  

I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!    

July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Sunday, July 12, 2015

NYT: Specialists with Team Skills May Help with Planning

From the New York Times, Making Decisions about Elder Housing May Take a Team Effort, by John Wasik:

But for elderly people like Ms. Renninger, now 83, deciding what to do next can be an almost overwhelming task. Is it time to move to a nursing home or some other type of assisted living? Or will home care with a variety of support services work?

 

It is an issue millions of people — especially baby boomers and their parents — are grappling with now. The choices are so complex that more and more people are finding they cannot make the decisions alone. As a result, with the number of Americans age 85 and older growing faster than any other age group, as the Congressional Budget Office reports, so is the demand for elder care specialists.

Detailing what many Elder Law Attorneys also provide, the article gives several examples of professionals with multi-disciplinary skills, such as a geriatric care manager, or a doctor who is also a certified financial planner.  Thanks to Professor Laurel Terry for sending this timely link.

July 12, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management | Permalink | Comments (0)

Tuesday, June 30, 2015

Long Island "Elder Law" Attorney Pleads Guilty to Stealing $797K from Clients

On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients.  In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man.  It was alleged she used client funds to pay office, payroll and personal expenses. 

The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August.  According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.

June 30, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases | Permalink | Comments (0)

Monday, June 29, 2015

California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional

On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR).  Lots of interesting and important issues here, including:

  • the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
  • the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8,  is unconstitutional, both facially and as applied;
  • the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.

The 44 page opinion concludes:

"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court.  The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate....  The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling.  The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death.  A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."  

Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen,  who brought the action on behalf of CNHR and several nursing home residents.  Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.

June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink

Sunday, June 28, 2015

In Divorce of 90+ Year Olds, Nebraska High Court Confirms Award of Alimony to Pay Nursing Home Fees

In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care.  The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both.  Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.

The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards.  The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:

In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.  The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.

 

Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony. 

 

As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.

In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues.  For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.

June 28, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Cases | Permalink | Comments (0)

Thursday, June 25, 2015

ABA Journal: Delaware is First State to Grant Access to Digital Assets for Fiduciaries

From the July issue of the ABA Journal, news that "Delaware Leads the Way in Adopting Legislation Allowing Estate Executors Access to Online Accounts."   The article details the use of model legislation in permitting "Fiduciary Access to Digital Assets," and related or pending legislation in other states. 

Hat tip to Professor Laurel Terry -- visiting in Hawaii -- for being the first to send this our way! 

June 25, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (1)

Friday, June 19, 2015

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

Plus, historian Hendrik Hartog provides his own commentary and response! 

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, June 18, 2015

What Do We (and Should We) Mean by "Assisted Living?"

Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End,  and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems.  But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:

The idea spread astoundingly quickly.  Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers.  Wilson worked with her husband to replicate their model and to help others do the same.  They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.

 

Not long after that, Wilson went to Wall Street for capital, to build more places.  Her company, Assisted Living Concepts, went public.  Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country.  By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand.  It operated 184 residents in eighteen states.  By 2010, the number of people in assisted living was approaching the number in nursing homes. 

 

But a distressing thing happened along the way.  The concept of assisted living became so popular that developers began slapping the name on just about anything.  The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services.  Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....

For more, see Chapter 4 of Being Mortal, titled "Assistance." The other intriguingly-named chapters are "The Independent Self," Things Fall Apart," "Dependence," "A Better Life," "A Better Life," "Letting Go," "Hard Conversations," and "Courage."

June 18, 2015 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 16, 2015

Siblings' Dispute Over Filial Support Finds Way to Bankruptcy Court

Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability.  The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother. 

In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts." 

The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members.  This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault.  For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).

June 16, 2015 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, June 12, 2015

Wills: Don't Wait Until Tomorrow...

I enjoy reading newspapers when I travel as they provide another window into what is on the minds of local people.  Last week, I came across what appeared to be a regular column addressing questions of law, with the title: "Wills: Don't Wait Until Tomorrow."  The article began:

"Often completion of a will is seen as a bad omen, as acceleration of a fact that should naturally occur but, you hope, not soon. However, the [proper] execution of this document, in addition to giving possessions according to one's wishes, can prevent future litigation."

Sound advice, correct? The opening was followed by descriptions of procedures for use with informal or holographic wills versus formal wills that are executed before a notary. What intrigued me, however, was this advice on how to avoid litigation over estates was in Granma, the "official newspaper of the Central Committee of the Communist Party of Cuba." While visiting Cuba for the first time last week as part of a small Penn State Faculty group tour, I was surprised to learn there was more private ownership of property than I had expected in Cuba.  Now I would be interested in knowing more about how and why any disputes over bequests or inheritance of privately owned assets or property tend to arise in Cuba.

In Cuba, as in other Latin American countries, lawyers can have a specific role as a "notary" in formalizing documents including wills; this role is not the same as the more ministerial role of  notaries as witnesses in the U.S.

It appears that in Havana, execution of a will can also include filing it with a central Registry, or, in other provinces, with an office in the local court. To preserve confidentiality, the testator has the option of registering only certain basic data, such as his or her name and date of completion of the will, and the identity of the notary, rather than the full content of the bequests.  

The translation of this article from its original Spanish, written by Onaisys Fonticoba, is mine -- and is admittedly a bit rough, even with the help of Google Translate.  Granma is also published on the internet in several languages, including English, although the editions are not identical. Granma, the name of the newspaper, is a tribute to the name of the "yacht" used by Fidel and his fellow fighters when he returned to Cuba in 1956.

June 12, 2015 in Estates and Trusts, International, Property Management | Permalink | Comments (0)

Wednesday, May 20, 2015

Massachusetts Case Demonstrates Significance of Contracts in Senior Living Options

This week I attended the 16th Annual Meeting of the Massachusetts Life Care Residents Association (MLCRA) near Boston.  Having last met with the group in 2011, I was impressed with the residents' on-going commitment to staying abreast of legal and practical developments affecting life care and continuing care (CCRC) models for senior living.  Their organization has some 800 individual members, representing a majority of the communities in the state. 

MILCRA Annual Meeting 2015In 2012, MLCRA was successful in advocating for passage of amendments that substituted "shall" for "may" in the laws governing key disclosures to be made to prospective and current residents. 

My preparation for the meeting gave me the opportunity to read one of those troubling "unpublished" -- but still significant -- opinions that shed light on attempts to make consumer protections stick.  Here the "contract" trumped the statute. 

In a February 2014 decision in Krens, v. 1611 Cold Spring Road Operating Company, a son who sought refund of his deceased mother's $282,579 partially "refundable" Entrance Fee was denied relief by a Massachusetts appellate court, despite the fact that Massachusetts law expressly mandated that a continuing care contract "shall provide" for a refund to be paid "when the resident leaves the facility or dies." The reasoning? The actual contract provided merely that the refund could be paid "within 30 days of actual occupancy of the vacated unit by a new resident." More than three years had elapsed since the mother's passing, apparently without the unit being "resold" or rented, and therefore the CCRC operating company took the position that no refund obligation had been triggered.

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May 20, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Monday, May 18, 2015

Drops in Occupancy Mark Challenges to Financial Health for Senior Living Industries

Publically-traded Brookdale Senior Living, founded in 1978, has grown to become the largest owner and operator of "senior living" communities in the U.S., including for-profit continuing care retirement communities (CCRCs). Thus, it is good to keep an eye on the finances of Brookdale for those of us interested in the long-term financial health of CCRCs and other senior housing options.

Steve Monroe at Irving Levin Associates notes that Brookdale "was no different than the rest of the market, posting sharp drops in first quarter occupancy" for 2015:

"The legacy Emeritus [a component of Brookdale, following a 2014 merger] properties posted a 110 basis point decline from the fourth quarter of 2014, and a whopping 200 basis point decline from a year ago. The legacy Brookdale properties dropped 80 basis points sequentially and 110 basis points from a year ago. This was not good news, but not unexpected. Oddly enough, the legacy Brookdale properties had a 250 basis point increase in community operating margin to 35.2% despite the occupancy declines. The Emeritus properties had a 90 basis point sequential drop in margin, which makes more sense."

How do you achieve a significant increase in "operating margin" despite "occupancy declines?" A good question to ponder.  Steve Monroe continues: "The reasons for the legacy Brookdale improvement were a combination of cost controls and more pricing flexibility. Move-ins have been increasing, which is great, but 'cost controls' always make me nervous, especially with the current acuity creep. Stay tuned."

The reference to "acuity creep" is to the increase in average age and frailty of new residents, compared with past years (especially before the financial crisis of 2008-10). This trend impacts CCRCs in several ways, both in terms of market appeal to healthier potential residents, and operating costs tied to an earlier need for higher levels of care.  An additional question may be whether low interest rates have supported a bubble in certain segments of senior housing despite the softer occupancy rates, and whether an eventual return to higher capitalization rates will result in lower values and additional consequences.

Along that same line, the Philadelphia Inquirer published a recent article in their "retirement" news edition, noting "Continuing-Care Retirement Community Choice Requires Diligence," by Harold Brubaker, with tips on what to ask if you are a consumer considering a CCRC option.

May 18, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Property Management, Retirement, Statistics | Permalink | Comments (0) | TrackBack (0)