Friday, November 28, 2014

Maryland Court Affirms Criminal Conviction re Daughter's Theft From Father's Joint Account

In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes.  The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.   

The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.  

The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute." 

Several key facts supporting the conviction are described in the decision, including:

  • Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
  • The father retained control over the checkbook for the account.
  • Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
  • The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.

Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.

Continue reading

November 28, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Factors to Consider In Determining Whether to Preserve Elder's Interest in Primary Residence

New Jersey Elder Law Attorney Linda Ershow-Levenberg outlines factual and legal issues to consider in deciding how to handle the family residence in a recent article for Experience, the ABA publication for the Senior Lawyers Division.  She warns that the "real trick is balancing [the clients'] financial security against the hopes of their heirs."

She begins by urging lawyers to resist a simplistic inquiry or "one size fits all" approach to elder law planning, stressing that lawyers should consider the impact of a proposed real estate conveyance on:

  • the elder's right to remain in the home;
  • a Medicaid application for either at-home or institutional services;
  • the income taxes of both transferor and transferee;
  • the elder’s financial and physical ability to remain in the home;
  • the elder’s estate plan; and
  • present and future liens and mortgages.

She observes that frequently an elder's "plan" to divide property equally among children or other heirs conflicts with the way in which property is already titled, noting that sometimes the choice of  co-owners or death beneficiaries was intentional.  "As often as not, however, the elder simply did not understand that beneficiary designations such as 'POD' (pay on death) or 'ITF (in trust for) control the disposition of an asset despite contrary instructions in the will."  Additional complicated and conclusive presumptions may exist, arising from the form of title for real property, that also may conflict with a will, thus triggering expensive challenges that could have been avoided with more comprehensive understanding of the client's estate.   

The article appears to be written for non-specialist lawyers, who are often asked to do "simple" estate planning that, in the wrong hands, can result in anything-but-simple outcomes for the family. 

Here's the link for more on "Preserving the Primary Residence: The Minefield of Real Estate Transactions in Elder Law Planning."

The theme of this issue of Experience is "Real Estate Issues Affecting the Elderly," and the issue includes discussion of the pitfalls of reverse mortgages, income tax liability connected to foreclosures, and "unique" property rights issues for seniors in Western states, including water rights.

November 25, 2014 in Estates and Trusts, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

"City Sidewalks, Busy Sidewalks"... and the Importance of Safe Sidewalks

If you recognize the quoted language from the title above, you can imagine me humming the lyrics to "Silver Bells" as I type.  Perhaps we should add a new refrain.  As detailed in the Los Angeles Times piece on "Residents Celebrate the 100th Repaired Sidewalk in South L.A. District," safe sidewalks are important to everyone, but particularly to people who have mobility issues, including some older adults.  In the article, a stretch of deteriorated sidewalk outside an 84 year old woman's home prevented her for using her walker to get around her neighborhood. The challenge of accomplishing something as seemingly simple as this infrastructure issue, is demonstrated by the statistics in the article, showing there are 11,000 miles of sidewalks in L.A., and an estimated 40% are in need of repair. 

The question of how to pay for sidewalk repairs is significant for cities.  In Los Angeles, for example, policies on sidewalks can conflict with developers' preference for streets lined with trees.  Tree roots are often the cause of sidewalk damage.  For a number of years in the 70s, the city offered free repairs for sidewalks damaged by tree roots.  But as budgets tightened, public funding was withdrawn, and subsequent efforts to create alternative funding for sidewalk repairs have been controversial.

In my own small community, there is an ordinance that permits the governing body to mark sidewalks in need of repair with a big X (and for some reason they do so with pink paint), and the home or business owner has a fixed amount of time to make the repairs, or be subject to public repairs at a potentially higher price.  Obviously this approach won't work in every community -- and it is probably less than cost effective unless adjacent property owners work together to save money on contractors. 

By the way, while humming along on this topic, I discovered that there is a relevant, highly placed, law review article -- mostly dealing with sidewalk safety in winter weather -- published in 1897 in Yale's legal journal.  See "The Law of Icy Sidewalks in New York State," 6 Yale L. J. 258. In this article I learned the interesting historical fact, that at least in some jurisdictions of the day, "it is not negligence for a person to walk upon an icy sidewalk without rubbers." 

November 20, 2014 in Consumer Information, Current Affairs, Property Management | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

Would Trustees' Investment in High-End Art Be Consistent with Fiduciary Standards?

We're discussing fiduciary duties for trustees in my Wills, Trusts & Estates course and perhaps that is why an article in the November- December issue of the ABA publication, Probate & Property, caught my eye.  The cover article is "Painting a Not-So-Pretty Picture: Art as an Alternative Investment in Fiduciary Accounts."  Author Michael Duffy, from Goldman Sachs, reports on recent eye-popping headlines for auction sales of artwork.  He  discusses the sales figures against the background of fiduciaries seeking better-than-conservative returns through use of alternative investments.  He outlines the tangible and not-so-tangible variables at the heart of art investment, leading to his thesis:

"It is the position of this author, however, that trustees should not be persuaded by the seemingly lackluster performance of their traditional investments reltative to these sensational headlines and that they should ignore the steady drumbeat of savvy marketers who have a vested interest in convincing them otherwise. There are simply too many considerations when buying and selling art that call into question the prudence of any such endeavor when undertaken by a fiduciary held to the highest investment standards under the law."

It is interesting to note that "absence of federal and state regulation" is one of the reasons for caution cited by this financial services author.

November 17, 2014 in Estates and Trusts, Ethical Issues, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, November 16, 2014

Examining Maine's Unique Improvident Transfers Law (ABA Bifocal)

In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. BIFOCALSeptember-October2014_cover_jpg_imagep_107x141  As the author, Maine elder law attorney Sally Wagley, explains,

"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."

Has the law been useful in Maine?  Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect.  She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."

For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."

November 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Statutes/Regulations | Permalink | TrackBack (0)

Wednesday, November 12, 2014

Should Estates Be Permitted to Sell Decedents' Body Parts, With Proceeds to Heirs or Beneficiaries?

Professor Reid Weisbord at Rutgers Law School - Newark has a new essay that takes on a challenging, two-part question: Whether a donor's estate should be permitted to sell a decedent's body parts or organs posthumously and whether the proceeds of such sales will be distributed to the donor's heirs or beneficiaries.  Professor Reid suggests an appropriate starting place is to define and provide for "anatomical intent" of the donor.  Before you start imagining vendors on Craigslist or at Sothebys, be advised the essay anticipates a regulated system.

You probably want to read more about this topic, correct?  See "Anatomical Intent" by Reed Weisbord from the November issue of Yale Law Review Forum.

November 12, 2014 in Advance Directives/End-of-Life, Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Thursday, November 6, 2014

NYT: Calling for "Silver" (Higher) Standards in Architecture and Design

Dr. Louise Aronson, a clinical professor in Geriatrics at University of California San Francisco, wrote a great piece in the New York Times recently, calling for a "silver" standard for architecture and design, to better meet the needs of older adults in public and private accommodations, while also making life easier and safer for everyone.  She explains:

"I unloaded the walker and led my 82-year-old father through the sliding glass doors. Inside, there was a single bench made of recycled materials. I noticed it didn’t have the arm supports that a frail elderly person requires to safely sit down and get back up. It was a long trek to the right clinic and I was double-parked outside. Helping my father onto the bench, I said, “Wait here,” and hoped he would remember to do so long enough for me to park and return.

 

He nodded. We were used to this. It happened almost everywhere we went: at restaurants, the bank, the airport, department stores. Many of these places — our historic city hall, with its wide steps and renovated dome, the futuristic movie theater and the new clinic — were gorgeous.

 

The problem was that not one of them was set up to facilitate access by someone like my father."

The irony was that the medical center building Dr. Aronson was writing about was brand new and renowned for its "green" design.  Nonetheless, it was failing to meet the practical needs of its many silver-haired clients. 

For more on how a revolution -- and incentives -- are needed to better meet the needs of an aging world, see "New Buildings for Older People."   

November 6, 2014 in Consumer Information, Discrimination, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Saturday, August 23, 2014

NYT: "Ubiquity of Powers of Attorney Has Led to Fears of Fraud"

The New York Times uses the history of one family's struggle to demonstrate growing concern on the part of banks and other financial institutions about potential misuse of popular documents such as powers of attorney or trusts to access accounts.  In "Power of Attorney Is Not Always the Solution," writer Paul Sullivan tells the story of "Carol" and her brother, now suffering from dementia, who years before had named his sister as his agent: 

"[W]hen she looked at the power of attorney, she noticed that he had used her legal first name, Carol, which she had all but abandoned in childhood, not the middle name she had used instead.

 

She didn’t think much of it until she went to the first of the many banks he used. She presented the power of attorney, explained the situation and waited. Instead of getting access to his accounts to pay for his care, she was told the bank would not honor her power of attorney because the name was wrong....

 

She said she has lost countless hours from work and her own family sorting out payment for his care. After supplying a pile of documents, the two that seemed to have helped were an affidavit from her brother’s lawyer saying that Christine is the person he wanted to have control over this affairs and a document from the Social Security Administration that was the missing link for the various iterations of her name.

 

She has been able to move some of his assets into a trust for his care, yet she remains baffled by a process that is far from over. 'It’s insane,' she said. 'He was all buttoned up with all the documents you needed. But he could outlive me, which is going to be interesting. Then what happens?'"

Hat tip to to Prof. Laurel Terry, and her early morning practice of reading the New York Times, for alerting us to this piece!

August 23, 2014 in Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 29, 2014

Reverse Mortgages & Protection for Non-Borrowing Spouse

As we reported previously, Congress passed the "Reverse Mortgage Stablization Act" in August of 2013.  In both state and federal legislatures, a new law's title may over-promise and under-deliver. With respect to reverse mortgages, Public 113-29 gave authority to the Secretary of Housing and Urban Development (HUD) to establish, by "notice or mortgagee letter, or any alternative requirements" deemed ncessary "to improve the fiscal safety  and soundness of the program," and the latest in a series of HUD requirements takes place, as detailed below, on August 1.


From a consumer perspective, one concern has been reported attempts by mortgage companies to "foreclose" on mortgages where the "borrowing spouse" has died but his or her "non-borrowing, surviving spouse" was still in the home.  Other concerns have focused on "defaults" triggered by failure of a borrower to pay real estate taxes or utilities, thus suggesting continuing  vulnerability of the elderly borrower to financial insolvency despite receiving cash from the reverse mortgage.  Taking out a reverse mortgage without careful planning for necessary home-related payments means the borrower can lose the equity in the home, equity that could have been put to better use by selling the home. As reported here, suits have challenged application of payment due status in such fact patterns. 

In June, the Department used its "Mortgagee Letter" authority to issue its latest in guidelines intended to better protect prospective borrowers of the risks of reverse morgages, including requirement that the mortgage companies make clear to borrowers the following:

  • FHA insures fixed interest rate mortgages, as well as annual and monthly adjustable interest rate mortgages;
  • The borrower has the ability to change the method of payment under the reverse mortgage ARM products at any time provided funds are available;
  • Fixed interest rate mortgages are limited to the Single Disbursement Lump Sum payment option where there is a one-time draw at loan closing and no future draws post loan closing;
  • Adjustable interest rate mortgages provide for five, flexible payment options, and allow future draws;
  • The amount of funds available to the mortgagor is currently determined by the age of the youngest mortgagor, and
  • The disbursement of mortgage proceeds during the first twelve-month disbursement period is subject to an initial disbursement limit as determined by requirements set by the Secretary.

In April, the Department issued "Mortgagee Letter 2014-07" to establish, effective August 1, that "the due and payable status will be deferred for as long as a Non-Borrowing Spouse continues to meet all the qualifying attributes...."  The nonborrowing spouse has 90 days after the death of the borrowing spouse to "establish legal ownership" or other legal right to remain in the home. 

July 29, 2014 in Ethical Issues, Housing, Property Management | Permalink | Comments (0) | TrackBack (0)

Sunday, July 20, 2014

17th Annual Elder Law Institute in Pennsylvania: Packed Program on July 24-25

The growing significance and scope of "elder law" is demonstrated by the program for the upcoming 2014 Elder Law Institute in Philadelphia, Pennsylvania, to be held on July 24-25.  In addition to key updates on Medicare, Medicaid, Veterans and Social Security law, plus updates on the very recent changes to Pennsylvania law affecting powers of attorney, here are a few highlights from the multi-track sessions (48 in number!):

  • Nationally recognized elder law practitioner, Nell Graham Sale (from one of my other "home" states, New Mexico!) will present on planning and tax implications of trusts, including special needs trusts;
  • North Carolina elder law expert Bob Mason will offer limited enrollment sessions on drafting irrevocable trusts;
  • We'll hear the latest on representing same-sex couples following Pennsylvania's recent court decision that struck down the state's ban on same-sex marriages;
  • Julian Gray, Pittsburgh attorney and outgoing chair of the Pennsylvania Bar's Elder Law Section will present on "firearm laws and gun trusts."  By coincidence, I've had two people this week ask me about what happens when you "inherit" guns.

Be there or be square!  (Who said that first, anyway?)     

July 20, 2014 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 15, 2014

Faculty Share Work from Australian Research Network on Law & Ageing

Representatives from some 16 countries participated in the 2014 International Elder Law and Policy Conference at John Marshall Law School on July 10-11.  There was impressive participation -- especially given the distances for travel to attend the short and intense conference -- by faculty members from Australia, including Dean Wendy Lacey from the University of South Australia School of Law, Associate Dean Meredith Blake from the University of Western Australia School of Law, Lisa Barry from Macquarie University Law School in Australia, and Eileen Webb from the University of Western Australia School of Law. 

I learned that there is a strong research network on law and ageing topics in Australia, ARNLA.  Many of the issues they are addressing mirror issues recognized elsewhere in the world, even as the laws and standards may differ between the countries.  Several of the Australian participants reported on recent research or works in progress.Flag_of_Australia_(converted)_svg

For example, Meredith Blake addressed the challenge of using advance directives to honor the directions or wishes of a principal after the individual develops dementia.  She pointed out that unlike some U.S. states that require agents to follow the principal's known wishes or directions, in Queensland the use of a "best interest" standard for agents acting under health care directives may frustrate the wishes of the principal.  Using a detailed and realistic hypothetical to illustrate concerns, Professor Blake urged adoption of a more flexible approach. 

Eileen Webb's presentation focused on how property law concepts in Australia may help or hinder efforts to respond to instances of potential financial abuse, as where an older individual allows or directs transfer of property interests to other family members or unrelated individuals "without adequate protection or for consideration which is illusory."

Professor Webb introduced me to a new but useful label,"family accommodation arrangements," which she reported was one of the most frequent sources of concern for elder abuse in Victoria.  I was particularly impressed by graphs she created to illustrate and organize potentially applicable legal theories, including fraud, undue influence, estoppel, failed joint ventures, common intention and contributions to purchase price for third parties.  The theory of law used to pursue a claim may affect the relief available. Professor Webb urged adoption of specific legislation in Australia to better address the potential for abuse through property transfers.

July 15, 2014 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Property Management | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2014

Safeguarding Projects for Older Persons -- on Both Sides of the Atlantic

I'm at the mid-point in a three-week period of fairly intense focus on elder protection issues. 

Last week, I accepted the invitations of Dickinson Law alum Bob Gerhard and Judge Lois Murphy to join them at the Montgomery County Elder Justice Roundtable to discuss  practical concerns about elder abuse at the local level.  Bob and I conducted two sessions on Powers of Attorney.Montgomery County Court of Common Pleas Judge Lois Murphy

This week, I've had the privilege of being part of working sessions of the Pennsylvania Supreme Court's Elder Law Task Force.  Judge Murphy, right, is also a part of this effort.  A fascinating mix of trial and appellate level judges, district attorneys, legal aid specialists, solo practitioners, "big firm" lawyers, court administrators, state officials, protective service case workers, social workers (and a couple of us academic types) spent two intense days discussing a year's worth of research on how better to serve the interests and needs of adults who may be at risk of neglect or intentional harm, including financial abuse.  Pennsylvania Supreme Court Justice Debra ToddGuided by the charge of Justice Debra Todd of the Pennsylvania Supreme Court, we're looking to issuance of a comprehensive report and recommendation for actions, probably in the early fall 2014.

Next week, I land in Belfast, Northern Ireland for several days of working group meetings on law and aging topics. On Tuesday, June 24, I am part of a research team's Roundtable discussion on recommendations regarding "social care" for older persons. hosted by the independent Commissioner of Older Persons in Northern Ireland (COPNI).  Our team leader for that project is Dr. Joseph Duffy of Queen's University Belfast.   The following day, I will attend the COPNI's launch of "Protecting our Elder People in Northern Ireland: A Call for Safeguarding Legislation in Northern Ireland." Commissioner Claire Keatinge and her team have been tireless in pursuing a full agenda of safeguarding, care and dignity goals for seniors.  CK-speaking-shot-1_7443ae89515d53a077487a41aded4a9cLast winter I worked on research findings and recommendations with team leader Dr. Janet Anand, also of Queens University Beflast, that served as a base for the Safeguarding Law proposals.  These two projects have involved amazingly talented scholars from diverse backgrounds, including social work and law in Scotland, England, Wales, Australia and, of course, both the north and south of Ireland. The truth is that I've been an avid "student" during my opportunities in Northern Ireland, often facing the reality that those on the other side of the Atlantic are ahead of the U.S. in thinking about key concepts, especially "social care" goals.  I look forward to more work, writing several follow-up articles in collaboration with team members as a result of the rich research environment of the last year. 

Following this schedule, I'm probably going to take a break from "daily" blogging for a few weeks.  I fear my brain may explode if I don't give it a bit of a rest, and I hear the green hills and fields of Ireland calling to me. 

June 20, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Pennsylvania Legislature Sends New POA Law Reform Measures to Governor

On June 18, the Pennsylvania House of Representatives approved  House Bill 1429 (Printer's No. 3708), thus sending the long-debated bill's new provisions on Powers of Attorney to the Governor for signing.  If, as anticipated, the bill is signed by the Governor, the new rules would be effective for POAs created on or after January 1, 2015. 

Pennsylvania pracitioners?  That means the Elder Law Institute offered by the Pennsylvania Bar Institute on July 25-26 in Philadelphia will have new relevance to your practice to prepare for the changes.  The opening session of the Institute is the always valuable "Year in Review" by elder law and estate planning specialists Marielle Hazen and Rob Clofine.

A detailed summary of the history and key provisions in H.B. 1429 is provided by Pennsylvania Attorney Neil Hendersthot on his blog. 

June 18, 2014 in Ethical Issues, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, June 15, 2014

Sears Methodist Retirement Files for Chapter 11 Reorganization in Texas

According to news reports, on June 10 Sears Methodist Retirement System, Inc. filed a voluntary petition in bankruptcy court in Texas, seeking relief under Chapter 11.  Apparently the private company, organized as a nonprofit that currently operates eleven senior living properties in Texas, including Contining Care Retirement Communities (CCRCs), Assisted Living facilities and Veterans homes, is seeking to reorganize some $160 million in debts. The multi-company operation provides housing and services to some 1,500 residents.  A detailed early report by Peg Brickley at Daily Bankruptcy Reports explains the initial relief sought: 

The Texas nonprofit organization is asking the U.S. Bankruptcy Court in Dallas to authorize it to quickly borrow $600,000 from existing bondholders, warning that it would be forced to cease operations without access to the funds. 

 

"Such an abrupt cessation of the...businesses would have devastating effects on the residents at the senior living facilities such debtors own and/or operate, including leaving many residents without food, medical supplies, and the health and support services that they require," Chief Restructuring Officer Paul B. Rundell said in court papers.

 

"In fact, many residents may be forced to immediately relocate, causing extreme hardship and putting both their lives and health at risk," added Mr. Rundell, of Alvarez & Marsal's Healthcare Industry Group.

 

Sears Methodist blamed the declining property market for some of its troubles. Older people are having trouble selling their homes and liquidating their stock portfolios to raise the money for the upfront payment to get into the senior-living communities, according to court papers.

I would expect some of the SMRS properties to be financially stronger than others, and thus could be spun off or taken over by other senior living operators, perhaps those with expertise in the specific type of property. When CCRCs are involved, residents have often paid very large "entrance" fees and must continue to pay substantial monthly service fees.  Even when their entrance fees are described as "refundable," CCRC residents are usually treated under bankruptcy law as "unsecured" creditors and thus become especially nervous during the proceedings.

Over the last several years, I've seen growing recognition that reassurance of existing residents, if possible, is critical to the continuation of the CCRC as a viable operation once it emerges from bankuptcy. Fortunately, despite continuing ups and downs (downs and ups?) in senior living markets since the 2008 financial crisis, the market has seen fairly strong players emerging.  There is also better appreciation for appropriate -- and inappropriate -- levels of risk and the importance of maintaining resident confidence over the long-term.

June 15, 2014 in Health Care/Long Term Care, Housing, Property Management, Retirement | Permalink | Comments (1) | TrackBack (0)

Thursday, May 15, 2014

Analyzing State Trust Law and Federal Welfare Programs

Maryland Elder Law and Disability Law specialist Ron Landsman provides a thoughtful analysis of use of trusts, especially "special needs trusts," to assist families in effective managment of assets.  His most recent article, "When Worlds Collides: State Trust Law and Federal Welfare Programs," appears in the Spring 2014 issue of the National Academy of Elder Law Attorneys (NAELA) Journal.   Minus the footnotes, his article begins:

"'Special needs trusts,' which enable people with assets to qualify for Supplemental Security Income (SSI) and Medicaid, are the intersection of two different worlds: poverty programs and the tools of wealth management.   Introducing trusts into the world of public benefits has resulted in deep confusion for public benefit administrators. . . . The confusion arising from the merger of trust law with public benefits is sharply drawn in the agencies' [Social Security Administration (SSA) and Centers for Medicare and Medicaid Services (CMS)]  attempts to define what it means for a trust to be for the sole benefit of the public benefits recipient. Public benefits administrators have focused on the distributions a trustee makes rather than the fiduciary standards that guide the trustee.  The agencies have imposed detailed distribution rules that range from the picayune to the counterproductive and without regard, and sometimes contrary, to the best interests of the disabled beneficiary."

Drawing upon his experience in drafting trusts for disabled persons, Ron takes on the challenge of explaining how and where he sees the agencies' focus on "distribution" as misguided.  He contends, for example:

"The [better] task for CMS and SSA [would be] to use their authority to develop standards and guidelines that utilize, rather than thwart, competent, responsible, properly trained trustees as their partners in making special needs trusts an effective tool in serving the needs of people with disabilities.  If this were done properly, capable trustees would be the allies of the federal and state agencies in the efficient use of limited private resources.  Beneficiaries would live better, more rewarding lives to the extent that resources can make a difference, at a lower cost to Medicaid, with a greater possibility of more funds recovered through payback."

Ron is detailed in his critique of agency guidelines and manuals, and he provides clear examples of his "better" sole benefit analysis. 

May 15, 2014 in Estates and Trusts, Federal Cases, Health Care/Long Term Care, Housing, Medicaid, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 14, 2014

Frolik & Kaplan: "Elder Law in a Nutshell" (6th Edition!)

It occurs to me that what I'm about to write here is a mini-review of a mini-book. Slightly  complicating this little task is the fact that I count both authors as friends and mentors.

The latest edition of Elder Law in a Nutshell by Professors Lawrence Frolik (University of Pittsburgh) and Richard Kaplan (University of Illinois) arrived on my desk earlier this month. (As Becky might remind us, both are definitely Elder Law's "rock stars.")  And as with fine wine, this book, now its 6th edition, becomes more valuable with age.  This is true even though achieving the right balance of simplicity and detail cannot be an easy task for authors in the intentionally brief "Nutshell" series.  Presented in the book are introductions to the following core topics:

  • Ethical Considerations in Dealing with Older Clients
  • Health Care Decision Making
  • Medicare and Medigap
  • Medicaid
  • Long-Term Care Insurance
  • Nursing Homes, Board and Care Homes, and Assisted Living Facilities
  • Housing Alternatives & Options (including Reverse Mortgages)
  • Guardianship
  • Alternatives to Guardianship (including Powers of Attorneys, Joint Accounts and Revocable Trusts)
  • Social Security Benefits
  • Supplemental Security Income
  • Veterans' Benefits
  • Pension Plans
  • Age Discrimination in Employment
  • Elder Abuse and Neglect

The authors describe their anticipated audience, including "lawyers and law students needing an overview of some particular subject, social workers, certain medical personnel, gerontologists, retirement planners and the like."  Curiously, they don't mention potential clients, including family members of older persons.  I suspect the book can and does assist prospective clients in thinking about when and why an "elder law specialist" would be an appropriate choice for consultation.  This book is a very good starting place.

What's missing from the overview?  Not a lot, although I find it interesting that despite solid coverage of the basics of Medicaid, and even though it is unrealistic to expect exhaustive coverage in a mini-book, the authors do not hint at the bread and butter of many elder law specialists, i.e., Medicaid Planning.  Thus, there's little mention of some of the more cutting edge (and therefore potentially controversial) planning techniques used to create Medicaid eligibility for an individual's long-term care while also preserving assets that otherwise would have to be spent down. 

Modern approaches, depending on the state, may range from the simple, such as permitted use of assets to purchase a better replacement auto, to more complex planning, as in states that permit purchase of spousal annuities or use of promissory notes, allow modest half-a-loaf gifting, or recognize spousal refusal.  Even though the federal Deficit Reduction Act of 2005 succeeded in restricting assets transfers to non-spouse family members, families, especially if there is a community spouse, may still have viable options.  Without appropriate planning the community spouse, particularly a younger spouse, may be in a tough spot if forced to spend down to the "maximum" permitted to be retained, currently less than $120,000 (in, for example, Pennsylvania).  See, for example, a thoughtful discussion of planning options, written by Elder Law practitioners Julian Gray and Frank Petrich.    

Perhaps the Nutshell omission is a reflection of the unease some who teach Elder Law may feel about the public impact of private Medicaid planning?  

May 14, 2014 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Medicare, Property Management, Social Security | Permalink | Comments (0) | TrackBack (0)

Sunday, April 13, 2014

Critical Issues to Consider in Planning Via Powers of Attorney

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

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

Monday, March 24, 2014

Call for a "Collaborative National Strategy" On Elder Abuse

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

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

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

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

Friday, March 21, 2014

Updated: The Importance of Accountability to Residents of CCRCs

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

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

 

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

 

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

 

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

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

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

Monday, March 17, 2014

Student Comment on Expansion of Medicaid Estate Recovery

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

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

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