Friday, October 13, 2017

How Much Should Guardians be Paid?

The National Guardianship Association takes the understandable position that "guardians are entitled to reasonable compensation for their services," while bearing in mind "at all times the responsibility to conserve the person's estate when making decisions regarding providing guardianship services" and in setting their fees.  See NGA Standard 22 on Guardianship Service Fees

Should there be "schedules" for fees, such as hourly fees, or maximum fees? Modern courts often struggle with questions about how to determine fees, and some states, such as Pennsylvania,  have a fairly flexible list of common law (not statutory) factors for the court to consider.  

In a April 2017 trial court opinion in Chester County, PA, for example, the court reviewed $54k in fees for the lawyer appointed to serve as guardian, and another $13k in fees for an attorney the guardians had hired.  According to the court, "Neither had sought leave of court prior to paying these sums out of the principal of the estate; the court learned of this when its auditor reviewed the annual report wherein these payments were disclosed."  The ward in question was 87-years old and a resident in a skilled nursing faciility, with dementia and other health issues.  The court struggled with the bills, commenting the format used was "inordinately difficult to follow" and at least on first review seemed "high for ten (10) months."  For guidance in evaluating the bills, the court did "two things.  It first searched the dearth of cases available for any guidance."  It also called the individuals to discuss the billing formats and learn more about the work completed.  

The Pennsylvania precedent was almost exclusively unpublished opinions, often from trial courts.  The Chester County court recounted some of the history of guardianships, from English times to colonial courts to the present, concluding, "In any event, no reported decisions have been located concerning professional compensation of guardians of the persons.  Apparently, society had no need of their services until more recent times."  

Ultimately, Chester County Court of Common Pleas's Judge Tunnell approved the fees, finding "a number of untoward events which transpired during the year in question," including a serious injury the ward sustained from a fall in the nursing home, additional health related concerns, the decision to relocate her to a different nursing home, and difficulties in selling the home that had remained empty for more than year.  The case had a history of accounting disputes, as evidenced by a 2013 decision by the same judge, although it did not appear anyone had challenged the latest fees reviewed sua sponte by the court  in the 2017 decision.  

In another Pennsylvania opinion, this time from an appellate court but also unpublished, the court observed, apparently with approval, that in Allegheny County, the Guardianship Department in the Orphan's Court uses  "court investigators" to review guardians' requests for payment of fees from the incapacitated person's estate.  See e.g., In re Long, Superior Court of Pennsylvania, February 14, 2017 (not officially reported).  

I'm curious whether our readers have thoughts on "scheduled" fees for guardians?  

October 13, 2017 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Monday, October 2, 2017

"Probable Cause" Prevents Son-in-Law/Agent from Suing for Malicious Prosecution in Elder Fraud Case

The case of Fisher v. King, in federal court in Pennsylvania, strikes me as unusual on several grounds.  It is a civil rights case, alleging malicious prosecution, arising from an investigation of transferred funds from elderly parents, one of whom was in a nursing home, diagnosed with "dementia and frequent confusion."  

Son-in-law John Fisher was financial advisor for his wife's parents, both of whom were in their 80s. He and his wife were charged with "theft by deception, criminal conspiracy, securing execution of documents by deception and deceptive/fraudulent business practices" by Pennsylvania criminal authorities, following an investigation of circumstances under which Fisher's mother-in-law and her husband transferred almost $700k in funds to an account allegedly formed by Fisher with his wife and sister-in-law as the only named account owners.  A key allegation was that at the time of the transfer, the father-in-law was in a locked dementia unit, where he allegedly signed a letter authorizing the transfer, prepared by Fisher, but presented to him by his wife, Fisher's mother-in-law.  The mother-in-law later challenged the transaction as contrary to her understanding and intention.

Son-in-law Fisher, his wife, and his wife's sister were all charged with the fraud counts.  They initially raised as defense that the transactions were part of the mother's larger financial plan, including a gift by the mother to her daughters, but not to her son, their brother.  

As described in court documents, shortly before trial on the criminal charges the two sisters apparently agreed to return the funds to their mother, and, with the "aggrieved party" thus made whole, Fisher and his wife entered into a Non-Trial Disposition that resulted in dismissed of all criminal charges. At that point, you might think that everyone in the troubled family would wipe their brows, say "phew," and head back to their respective homes.

Not so fast.  Fisher then sued the Assistant District Attorney and the investigating police officer in federal court alleging violations under Section 1983 -- malicious prosecution and abuse of process. 

Continue reading

October 2, 2017 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 26, 2017

Rental Housing and Seniors -- the Live-In Care-Giver Problem?

Recently, our law school's Community Law Clinic represented a woman who had been living with her brother for more than a year at his 2-bedroom rental apartment.  The landlord was fully aware of the situation.  Both brother and sister were 70+, and the sister's presence meant that the brother had appropriate assistance, including assistance in paying his bills (and rent!) on time.  However, a few weeks ago the brother was hospitalized on an emergency basis, and then required substantial time in a rehabilitation setting, and may not be able to return to his apartment.  

What's the problem?  When the landlord learned that the brother had been living away from the apartment for several weeks, and was not likely to return, the landlord notified the sister she could not "hold over" and eventually began eviction proceedings against her.  Fortunately, the Clinic was able to use state landlord-tenant law to gain some time for the sister to find alternative housing (and to arrange for her brother's possessions to be moved), but both brother and sister were unhappy with the compelled move.

Lots of lessons here, including the need to read leases carefully to determine what that contract says about second tenants, who aren't on the lease.  In this situation, the landlord's attempted ouster was probably triggered by the sister making a few reasonable "requests" for improvements to the apartment.  The landlord didn't want a "demanding" resident!

The question of "rights" of non-tenant residents happens often in rental housing -- without necessarily being tied to age.  

I was thinking about this when I read a recent New York Times column, which offered an additional legal complication -- New York City's rent control laws, and the needs for "dementia-friendly" housing, that can involve caregivers. See Renting a Second Apartment for a Spouse Under Care. 

 

September 26, 2017 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Tuesday, September 19, 2017

Dispute Between Texas Senior Living Providers Sheds Light on Marketing Labels Such as "Assisted Living"

We have written on many legal issues that arise from the attempt by the senior care living industry to market their housing products.  For example, see here, here and here for coverage of recent disputes and proposals affecting so-called "assisted living" or "personal care" providers.

Recently In Texas, two competitors have been arguing over the definition of assisted living.  

In LMV-AL Ventures, LLC d/b/a The Harbor at Lakeway vs. Lakeway Overlook, LLC., a licensed assisted living facility, Harbor, is attempting to block operations by a new competitor, LTIL, arguing that despite the competitor's attempts to self-identify as offering only "independent living," it is really an unlicensed assisted living community.  Harbor earlier had negotiated with the developers of the large-scale community for a deed restriction that would have prevented a competitor offering "assisted living" from moving in.  

On May 20, 2017, the United States District Court for the Western District of Texas denied Harbor's motion for  preliminary injunctive relief, concluding that Harbor had failed to satisfy its burden to establish "a substantial likelihood of success on the merits."

Part of what is interesting in this dispute is the magnitude of Harbor's efforts to prove their theory that LTIL was an assisted living community in disguise.  Harbor hired a private investigator to pose as a prospective client for LTIL.  The investigator tape-recorded a sales representative for LTIL.  

Arguably, it  seems the representative walked a very narrow line between emphasizing ways in which the planned community would meet the assistance needs of an older and potentially disabled client, while also attempting to characterize the menu of services available for purchase from an on-site home-health company as more affordable than the similar services offered by an "assisted living" facility.

 During the meeting, Ms. Parker described some of the amenities and services LTIL expected to offer. She explained that LTIL intended to offer three meals a day for residents prepared by an onsite chef, housekeeping, and transportation services. . . . Ms. Parker also described how LTIL features 140 apartments with a variety of floor plans. . . .  Ms. Parker stated Capitol [a "home health provider compamy]would be renting space inside LTIL and could provide care such as bathing assistance an elderly resident might need. . . .  She indicated personnel would staff the concierge desk twenty-four hours a day and residents would be given a pendant to call for assistance.  

Ms. Parker also explained the difference between LTIL and an assisted living facility. According to Ms. Parker, “with[ ] assist[ed] living you're paying a little bit more money but you're also getting care givers that are there on site, uh, all hours of the day. ... and you kind of pay for, the different services that you need. Some medication reminders, bathing and stuff like that. Uh, our community is an independent living.... so the residents that live there are pretty much independent. We don't provide caregivers to help do these things all the time.” . . .  Ms. Parker further described how a resident may later need to move to a place that “can give her more care or an assisted living [facility]” when she needs more help. 
 
One one level, the case demonstrates the level of competition that exists among companies marketing senior living properties to prospective residents.  Lots of providers are trying to be "the best choice" for aging adults.
 
But, on another level, the case shines a light on why states often do attempt to regulate senior care providers beyond the usual "nursing home" identity.
 
Without clear and enforceable rules about how a provider can market to the public, it seems likely that sales representatives could be tempted to fudge the line of what their facility offers, to match the prospective resident's desires about services and price.
 
Indeed, misrepresentation is at the heart of the allegations in the California class action case we discussed earlier this month, filed by care-needing residents against Brookdale Senor Living's "assisted living" operations, alleging unfair trade practices and consumer rights violations.  

September 19, 2017 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 18, 2017

Fla Supreme Ct Permits "Ratification" of a Ward's "Invalid" Marriage

In a case with sad facts, the lower court in Smith v. Smith certified a question to the Florida Supreme court as follows:

"Where the fundamental right of marry has not been removed from a ward [under state guardianship law], does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?"

During the guardianship proceeding at issue, apparently the original court had not specifically addressed the right to marry.  In light of that fact, in its ruling on August 31, 2017,  the Florida Supreme Court answered a slightly different issue, because it viewed the "right to marry" as being tied to the "right to contract," which had been expressly removed from the ward.

The Florida Supreme Court ruled that "where the right to contract has been removed [under Florida guardianship law], the ward is not required to obtain court approval prior to exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect."  

Counsel representing the wife of the incapacitated "husband," argued that, in effect, such ratification had already happened, during a proceeding where the guardianship judge had made comments treating the marriage as "fact."  The Supreme Court disagreed:

Although the invalid marriage between Glenda and Alan is capable of ratification under [Florida law], it is unlikely that the Legislature intended for “court approval” to consist merely of acknowledging the existence of a marriage certificate and commenting on the alleged marriage, without issuing an order ratifying the marriage or conducting a hearing to verify that the ward understands the marriage contract, desires the marriage, and that the relationship is not exploitative. Therefore, we conclude the guardianship court's statements here were not sufficient to approve the marriage. However, the parties are not foreclosed from seeking court approval based on our decision today.

The ward in the Smith case was not alleged to be older or elderly; rather, the determination of his lack of legal capacity followed a head injury in a car accident. Recognizing the larger implications about validity of a marriage occurring during a guardianship, however, the Real Property Probate Section and the Elder Law Section of the Florida Bar and the Florida chapter of the National Association of Elder Law Attorneys submitted amicus briefs, arguing generally in favor of a ward's right to marry and urging the Supreme Court to approve post-marriage ratification by the guardianship court. 

September 18, 2017 in Cognitive Impairment, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 14, 2017

Women Who Are Older--Financial Fears?

How well-prepared are you for financing your retirement? Do you know your family's finances?  The New York Times examined the situations that may be faced by women who are older who are not involved in the handling of their family's finances. Helping Women Over 50 Face Their Financial Fears covers a lecture series, Women and Wills, designed specifically for women over 50 that cover a variety of topics, including estate planning. health care, insurance, long term care, business succession planning and more. The founders are well aware that some women may not be up to speed on their family's finances, or other circumstances such as a spouse's illness, may present challenges for them. The founders plan to take their lecture series on the road, nationwide, and publish a book on the importance of planning.

Thanks to Professor Naomi Cahn for sending a link to the article.

 

September 14, 2017 in Books, Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Property Management, Retirement, Social Security | Permalink | Comments (0)

Thursday, July 27, 2017

Distributive Justice and Donative Intent

Professor Alexander Boni-Saenz at Chicago-Kent College of Law has an interesting new article, Distributive Justice and Donative Intent, forthcoming in the UCLA Law Review.  From the abstract:

The inheritance system is beset by formalism. Probate courts reject wills on technicalities and refuse to correct obvious drafting mistakes by testators. These doctrines lead to donative errors, or outcomes that are not in line with the decedent’s donative intent. While scholars and reformers have critiqued the intent-defeating effects of formalism in the past, none have examined the resulting distribution of donative errors and connected it to broader social and economic inequalities. Drawing on egalitarian theories of distributive justice, this Article develops a novel critique of formalism in the inheritance law context. The central normative claim is that formalistic wills doctrines should be reformed because they create unjustified inequalities in the distribution of donative errors. In other words, probate formalism harms those who attempt to engage in estate planning without specialized legal knowledge or the economic resources to hire an attorney. By highlighting these distributive concerns, this Article reorients inheritance law scholarship to the needs of the middle class and crystallizes distributive arguments for reformers of the probate system.

When I teach Wills, Trusts & Estates, I always include a few of the latest news articles or case reports that focus on LegalZoom or other, less high-profile on-line document drafting venues that are used directly by consumers.  Alex's article examines the implications of formalism for this important reality.  Thanks, Alex!

July 27, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 14, 2017

Your Estate Planning IQ?

Kiplinger has a nifty quiz for you to test your knowledge about estate planning. The quiz, What Do You Know about Wills and Trusts? Test Your Estate-Planning Smarts consists of 10 multiple choice questions with explanations once you have answered a specific question.  Take the quiz - it only takes about 5 minutes. Your results are instantaneous and you can compare your knowledge against the rest of us (the average is 7 correct answers out of 10). If you teach Trusts & Estates, this would be a good exercise to give during the first class!

June 14, 2017 in Consumer Information, Current Affairs, Estates and Trusts, Property Management, Web/Tech | Permalink | Comments (0)

Monday, June 12, 2017

The Department of Labor Fiduciary Rule

Parts of the Department of Labor Fiduciary Rule is finally in effect, but whether the rule with stay or be repealed remains to be seen.   Investments News ran a recent article, DOL fiduciary rule takes effect, but more uncertainty lies ahead.  The article explains that "[t]wo provisions of the measure, which requires financial advisers to act in the best interests of their clients in retirement accounts, become applicable [June 9th]. One expands the definition of who is a fiduciary, and the other establishes impartial conduct standards." According to the article, the entire rule is scheduled to go into effect January 1, 2018, but that may be delayed since the agency is undertaking regulatory reviews as part of the mandate from the administration.  As far as the 2 regs in effect, the article explains that those "will govern adviser interactions with clients in retirement accounts. Under those provisions, advisers must give advice that is in the best interests of their clients, charge reasonable compensation and avoid "misleading statements" about investment transactions and what they're being paid."  There is a grace period until July 1, 2018 regarding advice being given to clients, as long as the "fiduciaries who are working diligently and in good faith to comply with the fiduciary duty rule." 

The article also mentions that the SEC has asked for comments regarding fiduciary duty.

Stay tuned....

June 12, 2017 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Other, Property Management | Permalink | Comments (0)

Tuesday, January 10, 2017

Oregon Supreme Court Rejects Medicaid Estate Recovery for Asset Transfers between Spouses

In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014).  The high court concluded:

Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.

Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case.  His firm's Blog further reports on the effects of the final ruling in Oregon:

"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."

January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, December 8, 2016

21st Century Cures Act

The Senate passed the 21st Century Cures Act, HR 34, on December 7, 2016. Having already passed the House, the bill goes to the President for signature.  There are two specific provisions in the Cures Act that bear mention:

The Special Needs Trust Fairness Act in section 5007, which allows a beneficiary with capacity to establish her own first-party SNT (finally) and Section 14017 which deals with capacity of Veterans to manage money.

Section 5007 provides:

SEC. 5007. Fairness in Medicaid supplemental needs trusts.

(a) In general.—Section 1917(d)(4)(A) of the Social Security Act (42 U.S.C. 1396p(d)(4)(A)) is amended by inserting the individual, after for the benefit of such individual by.

(b) Effective date.—The amendment made by subsection (a) shall apply to trusts established on or after the date of the enactment of this Act.

Section 14017 amends 38 USC chapter 55 by adding new section 5501A "Beneficiaries’ rights in mental competence determinations"

The Secretary may not make an adverse determination concerning the mental capacity of a beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title unless such beneficiary has been provided all of the following, subject to the procedures and timelines prescribed by the Secretary for determinations of incompetency:

“(1) Notice of the proposed adverse determination and the supporting evidence.

“(2) An opportunity to request a hearing.

“(3) An opportunity to present evidence, including an opinion from a medical professional or other person, on the capacity of the beneficiary to manage monetary benefits paid to or for the beneficiary by the Secretary under this title.

“(4) An opportunity to be represented at no expense to the Government (including by counsel) at any such hearing and to bring a medical professional or other person to provide relevant testimony at any such hearing.”.

The effective date for the VA amendment is for "determinations made by the Secretary of Veterans Affairs on or after the date of the enactment...."

The President is expected to sign the bill soon. More to follow.

December 8, 2016 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, Veterans | Permalink | Comments (0)

Friday, October 21, 2016

LeadingAge's Annual Meeting Begins October 30 in Indianapolis

LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October.  This year's theme is "Be the Difference," a call for changing the conversation about aging.  I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns.  For example, this year's line up of workshops and topics includes:

October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)

Wednesday, September 28, 2016

Attorney's Representation of 82-Year Old Woman on Slip & Fall Case Leads to Disciplinary Sanctions

I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?"  It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client.  The "family" is generally not the answer to "who is your client?," even if you represent more than one family member.  From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:

By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.



Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%. 



The case was settled, and Silva’s staff deposited the check into her operating account.  A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.



While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.

The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory.  Different accounts for different clients.  While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction.  The $64,000 question just got a whole lot more expensive for that lawyer. 

My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.

 

 

September 28, 2016 in Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 20, 2016

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:

 

Hon. Robin L. Wiessmann
Secretary, PA Department of Banking and Securities

 

Leonidas Pandeladis, Esq.
Chief Counsel, PA Department of Banking and Securities

 

Jeffrey P. Ehrlich, Esq.

Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess.

Related articles

September 20, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 3, 2016

Tackling the Issue of "Avoidable Deaths" in Long-term Care Settings

Pennsylvania attorney Douglas Roeder, who often served as a visiting attorney for my former Elder Protection Clinic, shared with us a detailed Penn Live news article on what the investigative team of writers term "avoidable deaths" in nursing homes and similar care settings.  The article begins vividly, with an example from Doylestown in southeastern Pennsylvania:

Claudia Whittaker arrived to find her 92-year-old father still at the bottom of the nursing home's front steps. He was covered by a tarp and surrounded by police tape, but the sight of one of his slim ankles erased any hope it wasn't him.  DeWitt Whittaker, a former World War II flight engineer, had dementia and was known to wander. As a result, his care plan required him to be belted into his wheelchair and watched at all times. Early on Sept. 16, 2015, Whittaker somehow got outside the Golden Living home in Doylestown and rolled down the steps to his death.

 

"It wasn't the steps that killed him. But the inattention of staff and their failure to keep him safe," his daughter said.

The article is especially critical of recent data coming from for-profit nursing homes in Pennsylvania, pointing to inadequate staffing as a key factor:

In general, according to PennLive's analysis, Pennsylvania's lowest-rated nursing homes are for-profit facilities. Half of the state's 371 for-profit homes have a one-star or two-star rating – twice the rate of its 299 non-profit nursing homes.  The reason for that discrepancy, experts say, isn't complicated: Studies have found that for-profit nursing homes are more likely to cut corners on staffing to maximize profit.

Spokespeople from both the for-profit and nonprofit segments of  the industry are quoted in the article and they push back against the investigators' conclusions.  

I have to say from my own family experience that while adequate staffing in care settings is extraordinarily important, older residents, even with advanced dementia, often have very strong opinions about what they prefer.   My father is in a no restraint dementia-care setting, with a small cottage ("greenhouse") concept and lots of programming and behavioral interventions employed in order to avoid even the mildest of restraints. It was a deliberate choice by the family and my dad walks a lot around the campus and has his favorite benches in sunny spots. 

The trade-off for "no restraints" can be higher risk.  Residents, including my father, are sometimes stunningly adept at escape from carefully designed "safety"plans, such as those necessary in the summer heat of Arizona. Family members often remain essential members of the care team.  For example, this summer I plan my daily visits at the very hottest part of the day, in order to help try to lure my father, a late-in-life sunshine worshiper, back into the cool.  I watch the staff members exhaust themselves intervening with other ambulatory and wheelchair residents who are constantly on the move.

None of this "care stuff" is easy, but certainly the Penn Live article paints a strong picture for why better staffing, better financial resources, and more reality-based plans are necessary.  For more, read "Failing the Frail." Our thanks to Doug for sharing this good article. 

August 3, 2016 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management | Permalink | Comments (0)

Thursday, July 28, 2016

ABA Family Law Quarterly Focuses on "Gray Divorces and Silver Separations"

This week my in-basket sported the latest copy of the Family Law Quarterly and it is a strong lineup of symposium authors writing on a range of issues connected to late-in-life marital woes.  The articles in the Spring 2016 issue include:

  • The Challenging Phenomenon of Gray Divorces, by Paula G. Kirby & Laura S. Leopardi
  • Representing the Elderly Client or the Client with Diminished Capacity, by Robert B. Fleming
  • The Battle for the Biggest Assets: Dissolution of the Military Marriage and Postdivorce Considerations for Aging Clients, by Brentley Tanner
  • Residence Roulette in the Jurisdictional Jungle: Where to Divide the Military Pension, by Mark E. Sullivan
  • Family Support, Garnishment and Military Retired Pay, also by Mark E. Sullivan
  • Premarital Agreements for Seniors, by Peter M. Walzer & Jennifer M. Riemer, and 
  • Financial Abuse of the Dependent Elder: A Lawyer's Ethical Obligations, by Jeanne M. Hannah

In my review of the articles, I would have liked to see more discussion of the potential expectations  of the couple about payment of their respective long-term care costs, especially as a party's carefully signed premarital agreement may prove to be irrelevant to the state's analysis of eligibility for Medicaid to cover long-term care.  In most states, authorities insist on counting assets of both halves of the couple, without regard to any premarital agreement.  This is where "elder law" attorneys can be of help to traditional "family law" attorneys in planning.  Compare this Elder Law Answers' discussion of "Five Myths About Medicaid's Long-Term Care Coverage."

July 28, 2016 in Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Statutes/Regulations, Veterans | Permalink | Comments (1)

Wednesday, July 6, 2016

Residents Offer Their Perspectives on Three CCRC "Sales" in New Jersey

In New Jersey, ORANJ is an organization for residents of "continuing care retirement communities" (or CCRCs, also sometimes known as "Life Plan Communities," following a LeadingAge marketing study and plan announced in November 2015). Founded in May 1991, members recently celebrated their 25th anniversary.  In a summer 2016 newsletter, called, appropriately ORANJ Tree, residents from three communities reported on major changes in ownership of their facilities, and how such changes can affect community moral and future prospects.  The CCRCs discussed were:

  • 2016: Cadbury at Cherry Hill (reporting a new ownership is part of a conversion from nonprofit status to for-profit)
  • 2016: Franciscan Oaks
  • 2013: Fountains at Cedar Parke

In my observation, these New Jersey transactions, especially a conversion from nonprofit to for-profit, are part of a larger, national picture of communities struggling for identity in a competitive senior living market.

July 6, 2016 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Property Management, Retirement | Permalink | Comments (0)

Tuesday, July 5, 2016

Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania

In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute.  This year the program, in its 19th year, will take place on July 21-22.  It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event.  Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida.  He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.

Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level.  The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars." 

I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues.   So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.

Here is a link to pricing and registration information.  Just two weeks away!

 

July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)

Tuesday, June 21, 2016

Estate Planning Lessons from the Redstone Saga?

We've previously blogged about the happenings in the case and life of Sumner Redstone. Although one lawsuit was dismissed, it doesn't appear that is the end of the matter. The New York Times ran an article on June 2, 2016, In Sumner Redstone Affair, His Decline Upends Estate Planning. Although the focus of the story is Mr. Redstone's situation, the story notes that this happens perhaps more than we think.

As Americans live longer and more families are forced to cope with common late-in-life issues like dementia, the problem is getting worse. “It’s a huge issue nationally as the elderly population grows and their minds start to falter,” [one attorney interviewed for the story] said. “I’ve seen charities coming after people for multiple gifts: Sometimes these donors don’t remember that they already gave the previous week. Romantic partners, caregivers who take advantage of the elderly — we’re seeing it all.”

Elderly people may be especially susceptible to the influence of people who happen to be around them during their waning days.

Professor David English (full disclosure, co-author and friend) "a professor of trusts and estates at the University of Missouri School of Law and former chairman of the American Bar Association’s commission on law and aging" said

This is an issue for lots of people of even modest wealth... [and] the most common approach is the creation of a trust, either revocable (which means it can later be changed) or irrevocable, that anticipates such a problem and defines what the creator of the trust means by incapacity. This could be a much less rigorous standard than is typically applied by courts... The document should define the meaning of incapacity and, more importantly, indicate who determines incapacity....

The article goes on to examine the importance of trusts that are carefully well-drafted to address issues such as those faced in this case.  However, "sometimes no amount of legal advice can save people from an unwillingness to face their own mortality and cede control while still in full control of their faculties."

June 21, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management | Permalink | Comments (0)

Wednesday, June 8, 2016

Conversion of Senior Living Operations from Non-Profit to For-Profit - What are the Limits?

A recent New York Times article sheds light on a frequent topic I've encountered in my own research on the convergence of elder law, contract law, and nonprofit organizations law:  when will a nonprofit nursing home or similar senior living operation be "allowed" to convert or sell-off to a for-profit operation?  And what if the "real" plan is to convert to an entirely new type of for-profit operation? 

The potential for conversion appears to be the heart of a dispute over two nonprofit nursing homes in Manhattan, where State and City authorities are seeking to prevent their purchase by a for-profit company known as Allure Group.  From the New York Times:

Citing misrepresentations and broken promises, the New York State attorney general’s office is seeking to prevent the purchase of two nursing centers by a company that was involved in transactions that put a Manhattan nursing home in the hands of luxury condominium developers....

 

“Allure made clear and repeated promises to continue the operation of two nursing homes for the benefit of a vulnerable population — promises that proved to be false,” said Matt Mittenthal, a spokesman for the attorney general, referring to Rivington House and a nursing home bought by Allure in the Bedford-Stuyvesant section of Brooklyn, which were closed within a year of a court petition’s being filed. “Until we conclude our investigation, we will object to Allure buying additional nursing homes.”

 

In New York, any nonprofit seeking to sell its assets must petition a state court for approval; the attorney general reviews all such requests and can object if there are grounds to do so. The court has the final say....

For more, read New York Attorney General Seeks to Halt Sale of 2 Nursing Homes Amid Inquiries.

June 8, 2016 in Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)