Tuesday, May 15, 2018
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Monday, May 14, 2018
As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018. The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos. In-person training programs are also under development, on a county-by-county basis.
I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.
Nisa also provided links to the new Maryland Rules on mandatory training for guardians: Md. Rules 10-108, 10.205.1, and 10-304.1. In addition, these rules refer to Guidelines for Court-Appointed Guardians of the Person and Property. Thank you, Nisa!
The state of Washington also is developing a program for "lay/family (non-professional) guardians training."
County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.
Other states have also been active in establishing education and testing for prospective or current guardians. Several states' programs have been developed following allegations of improper appointments or lack of oversight. We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.
A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes described in legislation or court rules as "nonprofessional guardians." Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons. Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members.
The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules. As depicted on the map, some states have adopted CGC certifications as the state standard for approval of "professional" guardians. In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.
The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians.
You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.
Sunday, May 6, 2018
As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts. In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based "orientation program" before they are appointed guardian of a minor or disabled person. The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts. Here is a link to the video.
What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court. I think that many courts are still struggling with their own roles in this regard, but here the lines of responsibility are explained clearly.
The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but without making the information so overwhelming that good candidates decline the role. The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights.
In my opinion, this type of video is a good first step. But just a first step.
May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Thursday, May 3, 2018
Frequent reader Karen Miller from Florida made a timely catch by sending me two articles that both mention the "peace of mind" that can accompany living in purpose-planned retirement communities, including CCRCs or LPCs. Thanks, Karen!
In last Sunday's edition of the New York Times, reporter Peter Finch offered "How to Talk About Moving to a Retirement Home: It's a Journey." He includes admissions by once highly reluctant residents, including one who finally gave in to his wife's desire for a new setting:
For the once-skeptical Mr. Strumsky, it took only days for him to start feeling certain that he and his wife, who is 72, had made the right decision. About a week after moving in at Charlestown [a retirement community outside of Baltimore], he went out to walk the dog at night and ran into a pair of women he didn’t know who were chatting amiably in the parking lot. About 25 minutes later, he returned home and saw the same women, still talking.
“They were so unconcerned about their personal safety, they were oblivious to anything going on around them,” Mr. Strumsky said. “And it just hit me: I really wished my mother or my sister or my aunt could have had this experience, to feel that safe and secure. At that point, it was like a light bulb going on. It was an instant turnaround for me.”
By contrast, Patricia Hunt, a columnist for the News Leader (part of the USA Today Network), writes about "friends whining about the rules of their . . . subdivision," noting that the security that some people seek can come with a regulatory price tag, even if the regulator isn't the government. She writes in part:
In retirement many people with the means to do so choose a “continuing care retirement community.” There is a big price range, but basically you pay an entrance fee, and most require that you be well enough to live independently to be admitted. They provide food service, activities, and stepped up sections for “assisted living” and for the most debilitated, “skilled nursing care.” This is the most expensive option for one’s last years.
But the rules for the residents of CCRCs are set entirely by people who do not live in them. And flexibility is the most restricted of all options. If you grandson who ran away to join the circus can be talked into living with you for a few months until he can sort things out with his parents, you cannot let him do that. If you decline in health and your granddaughter is willing to come live with you so you don’t to go to assisted living or skilled nursing care, you can’t do that either. You can hire people to come in night and day, but your family member cannot simply move in. She must have another permanent address. At least this is how most of them work.
If you[r] adult child gets sick or loses a job and needs to stay with you, it is not allowed. And you may not have the money to help him or her out if you have spent it all on the entrance fee and monthly fees.
Hunt concludes by questioning whether people "really" do hate regulation, noting "there is plenty of evidence of that some of them are not only willing to live with more regulations than many other people, they are willing to pay a lot of money to do so."
For more from Hunt, read the full column "We Hate Regulation, But We Willingly Trade Away Our Basic Freedoms for Comfort, Security."
May 3, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, April 25, 2018
On April 24, 2018, members of the Organization of Residents Association of New Jersey, or ORANJ, held a plenary meeting at Cedar Crest Retirement Community in Pompton Plains, New Jersey. ORANJ President Ron Whalen began the meeting with an update on pending legislation attempting to resolve residents' concerns about timeliness of payments on "refundable fee agreements." Part of the message is reflected in the history of Pat Lund, a resident of a CCRC in Waterford Township, New Jersey, who waited eight years for her "refundable fee" to be paid after moving out of her apartment. Under the terms of her contract, the refund was not "payable" until someone else occupied her specific unit but the facility seemed to have little interest or incentive to market her particular unit. For more on this topic, see my update post from last week. As summarized by Ron Whalen, "many of the 10,000 New Jersey residents in CCRCs (also known as Life Plan Communities or LPCs) have this type of contract."
James McCracken, the new president and CEO of LeadingAge New Jersey was the afternoon speaker and he provided a roundup of topics affecting older adults in New Jersey as the legislative season draws to a close, including concerns about "earned sick leave," delayed Medicaid payments by the state to care facilities, proposed minimums on CNA staffing at care facilities, and changes to minimum wage.
I spoke in the morning about issues I see affecting CCRCs and LPCs nationally and in New Jersey, including topics that challenge tax-exempt CCRCs, such as pressure to make payments in lieu of taxes to state and local authorities. On the topic of resident concerns, I addressed what I call the "big three": lack of transparency on cost and funding issues, the need for effective resident voices in governance, and excessively paternalistic attitudes of some management.
This is at least my third time speaking with ORANJ members over a period of several years, and each time I visit I'm impressed with the strength of their resident organization and their ability to get the state legislature to listen. ORANJ helped their state to be one of the first to get legislative support for CCRC residents gaining the statutory right to serve as voting members on boards of governance, and ORANJ advocacy was also instrumental in passage of an enhanced "bill of resident rights" for CCRC operations.
New Jersey has approximately 40 CCRC/LPC communities within the state. Some 87 percent operate as not-for-profit, while another 13 percent are for profit. The majority of the communities are now part of "multi-site" organizations, and I spoke with several residents who reported on pending conversions of not-for-profit to for-profit.
April 25, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, April 19, 2018
Yesterday, the Senate Special Committee on Aging held a hearing on guardians exploiting individuals under guardianship. The hearing, "Abuse of Power: Exploitation of Older Americans by Guardians and Others They Trust.” offered 4 witnesses, including elder law prof, and reporter of the new Uniform Guardianship, Conservatorship & Other Protective Arrangements Act, Associate Dean Nina Kohn. The committee chair and ranking member opened the hearing with their individual statements. Their statements, along with the witnesses' testimonies, are downloadable as pdfs. There is also a video of the hearing, available here.
April 19, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink
Wednesday, April 18, 2018
The New Jersey Legislature is considering changes to the state's laws governing "refundable" entrance fee agreements used by some Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities.
Assembly Bills 2747/880 (and a similar bill in the New Jersey Senate, Senate Bill 1532) would limit the amount of time that CCRCs are permitted to retain "refundable" entrances fees after a resident vacates the facility. The Assembly's bills are moving first, with significant floor amendments adopted on April 12, 2018. Refundable entrance fees function, in essence, as a type of interest-free loan by the resident to the community.
The legislative statement accompanying Assembly Bill 2747 explains the original purpose of the proposed changes:
Under current law, a continuing care retirement community may retain an entrance fee for as long as it takes for the unit to be reoccupied by another resident. Absent a maximum refunding period, there is little incentive for the facility manages to aggressively market any particular unit. In some instances, a facility has retained the fee for several years after the unit has been vacated, unreasonably delaying the return of the fee. Further, if the resident has died, an estate may be forced to pay distribution taxes on money representing the fee refund, years before the estate and beneficiaries receive that fee refund.
At the heart of the proposals is a system by which each fully vacated unit would be assigned a "sequential number" that would create an order of priority for payment of refunds, triggered when any refundable fee unit is resold. Under the changes as originally proposed, the law would take immediate effect once passed.
The April 2018 floor amendments tinker with the language about the timing of the refunds (and my first impression is the language is confusing and could create a potential for manipulation of the order of repayments even after a sequential number has been assigned). In addition, the floor amendments permit the facility to apply for an "alternate" method of paying refundable entrance fees based on the units' "similarity" of size and other factors; this change favors the facility. The third change delays the law's implementation date for 90 days after enactment, and also provides that the mandatory sequential numbering system, intended to lead to more timely refunds, would apply only to CCRC agreements entered into on or after the effective date of the newly revised law.
After catching up on the New Jersey legislature under consideration, it occured to me I should check-in on a New Jersey lawsuit about "refundable" entrance fees. In 2015, in the case of DeSimone v. Springpoint Senior Living, Inc., the appellate division of the New Jersey Superior Court permitted residents to continue with their case asserting violation of state laws, arising out of the operators' alleged misrepresentation or failure to disclose a practice whereby the outgoing resident's refundable fees could be subject to reduction if the "resale" of that unit to an incoming resident was resold with a lower entrance fee. The appellate division explained in an unpublished opinion:
If Springpoint's staff or brochures distributed to the DeSimone family misrepresented the terms of the contract by the "lesser of" terms, or failing to disclose that the entrance fee was subject to market trends, and that the entrance fees were already being reduced by Springpoint due to market forces, plaintiff may be able to prove its various causes of action, including a violation of the [state's Consumer Fraud Act].
A clear understanding of this reduction is important because the marketing offices may "discount" entrance fees to attract new residents, hoping to cover operating costs with monthly service fees, including any increases over time. Refundable entrance fees are typically higher than nonrefundable entrance fees. In Ms. DeSimone's case, she had paid $159,000, under a 90% refundable fee plan (plus monthly services fees, based on level of care). She passed away about 16 months later. The facility allegedly sent her estate a refund check for only $80,136, apparently reflecting, at least in part, the fact that the next resident of her unit paid a discounted entrance fee of $127,000.
Checking in with Michael Coren, one of the lawyers representing the plaintiffs in the Springpoint case, I learned the parties have been actively pursuing discovery, and are nearing the stage where the plaintiffs' attorneys will soon ask for certification of the plaintiffs' class. Since the original suit was filed, when there were five Springpoint CCRCs in New Jersey, the nonprofit Springpoint holdings have grown, through acquisition of three existing operations.
These two developments in New Jersey remind me that the reason I added "Contract Law" to my teaching package (replacing Evidence) was because of how much time I was spending looking at contracts and consumer protection issues in elder law matters.
The National Center on Law & Elder Rights has released an issue brief, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. The issue brief offers 4 key lessons:
- Extra care in the creation of advance care planning documents can reduce the risk of abuse and exploitation.
2. Requiring accountability, additional checks and balances, and limited authority are drafting tools lawyers can utilize to limit risk of abuse.
3. Attorneys should advise clients to be extra diligent when selecting the agent(s) named in advance planning documents.
4. Authorizing revocation by third parties can help to limit the damage done by named agents who start to abuse or exploit the client.
I was intrigued by #4-the idea of naming a third party who could step in. The section, Five Safeguards to Consider Adding to a Financial POA discusses that among others. Here's how the issue brief explains the third party revocation provision: "Grant a power to revoke the agent’s authority to a trusted third person. This is a serious power to give any third person, so it requires an exceptional level of trust and reliability in the third person. But, if the agent’s actions prove seriously out of line, this can be a last resort. Some powers of attorney also authorize law enforcement or adult protective services to revoke the authority of the agent if they believe abuse or exploitation is taking place." Sample language is also included for each of the 5 Safeguards.
The brief discusses selection of agents and drafting health care directives in addition to drafting POAs. Practice tips are included as well as case examples. The issue brief is available here.
To learn more about the corresponding webcast click here. To download the PowerPoint for the webcast, click here.
April 18, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Programs/CLEs, Property Management, State Statutes/Regulations, Webinars | Permalink | Comments (0)
Monday, April 2, 2018
During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships. One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making. I promised the audience I would post some additional materials on the topic here.
For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship. Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities. The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow.
During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.
During the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.
So, what exactly is "supported decision-making?" Professor Diller explains:
The support can take the form of accessible formats or technological assistance in communication. Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.
The author warns there is no single model for supported decision-making. Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney.
In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law. The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here.
In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.
In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities." The ABA captured a host of materials related to this discussion on this website.
In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.
Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know." While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future. Here's an ABA webpage providing details.
My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference!
April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Thursday, March 29, 2018
Penn State's Dickinson Law Hosts Pennsylvania Judges for Program on "Dementia Diagnosis and the Law"
On Thursday, March 29, 2018 Penn State's Dickinson Law hosted a continuing judicial education program for the Pennsylvania Judiciary, with live attendance in Carlisle by more than 30 judges and with even more judges around the state participating via a live stream. The program was "Dementia Diagnosis and the Law," organized into three parts:
Part 1: Medical Science and Dementia
- Welcome by Dean Gary Gildin, Dickinson Law
- Keynote Presentation: Age-Related Cognitive Decline
- Krish Sathian, M.D., Ph.D., Professor of Neurology and Chair of the Department of Neurology for Penn State College of Medicine and Penn State Health Milton S. Hershey Medical Center
- Medical Perspectives – Responding to Legal and Ethical Quandaries of a Diagnosis: Two Brief Vignettes
- Associate Professor Claire Flaherty, Ph.D., Penn State College of Medicine, Department of Neurology
Panel Discussion and Audience Q & A
Part 2: Legal Implications of a Diagnosis of Dementia
- Keynote Presentation: Clinical, Legal and Judicial Judgments of Capacity in Persons with Dementia
- Daniel C. Marson, Ph.D., JD., Professor Emeritus, Department of Neurology, School of Medicine, University of Alabama at Birmingham
- Why “Guardianship Oversight” is a Hot National (and State) Topic
- Professor Katherine C. Pearson, Dickinson Law, Pennsylvania State University
Panel Discussion and Audience Q & A
Part 3: Adjudication Exercises, facilitated by Professor Tiffany Jeffers, Dickinson Law, with Dickinson Law students in role plays on issues about capacity to contract, limited guardians, the roles of guardians ad litem and the potential for attorneys or judges to become affected by a neurocognitive disorder.
- Panel Discussion and Audience Q & A
Panel Members included:
- The Honorable Lois Murphy, Judge, Montgomery County Court of Common Pleas
- The Honorable Paula Ott, Judge Superior Court of Pennsylvania
- Sally L. Schoffstall, Schoffstall Elder Law LLC, Orefield, PA.
- Laurel S. Terry, H. Laddie Montague Jr. Chair in Law & Professor of Law, Penn State’s Dickinson Law
As the law school's organizer for the event, I know I learned a lot from this dynamic group of seasoned experts who spoke on the challenging legal, medical, and judicial issues that can arise from cognitive impairments associated with aging. The judges in our audiences were fully engaged, offering great comments, questions and experiences.
My special thanks to each and every one of the speakers, facilitators, judges, lawyers and students who made the program so informative. It was fun to work with the Administrative Office of the Pennsylvania Courts on this project and we look forward to additional opportunities to collaborate in the future. Once I catch up a little on my day job (and maybe on some missed sleep), I'll post again with some additional reactions and thoughts from this program.
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Science | Permalink | Comments (1)
New Mexico, Where New Guardianship Laws Will Take Effect July 1, 2018, Struggles With Reporting Systems
Earlier this week, The Albuquerque Journal reported on continued problems with accountability for court-appointed guardians within New Mexico. Colleen Heild writes:
What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown – at least according to state district court records. . . . Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.
There’s no indication as to whether she is dead or alive, or if the guardianship/conservatorship has been revoked. . . .
As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.
State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.
“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’ ”
For more, read Missing Reports Plague Guardianship System (3/25/18).
March 29, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Tuesday, March 27, 2018
The New York Times has a good overview on 7 Ways to Judge a Retirement Community's Financial Health, by Peter Finch, published on March 9, 2018. Many of the tips come from savvy residents at Continuing Care Retirement Communities (CCRCs, also called LifePlan Communities) around the country, as well as from actuaries and industry experts.
As consumers grow more aware of risk at all levels of financial markets, senior living providers are facing good questions about how upfront entrance payments and monthly fees are used. Other topics include appropriate occupancy levels, the history of rate increases, debt ratings that can affect cost of operations and loans, capital improvements, reserves and the right of residents to be engaged on governance issues.
From the article:
Retirement community managers will not be shocked by these sorts of questions, promised Stephen Maag, director of residential communities at LeadingAge, an association of aging-service providers. “As we get the people born in the late ’30s and the baby boomers, they’re much more thorough in their research” than their parents and grandparents were, he said.
My thanks to my colleague Laurel Terry, for sending me this article. I especially enjoyed seeing two friends highlighted in the article, Jack and Valerie Cumming, residents of a CCRC in Carlsbad, California. When I visited with them a few years ago, I was happily amused to realize their lovely CCRC was once the hotel where my own parents spent their honeymoon. How about that for a sign of the times - - honeymoon spots that become retirement villages!
I was a bit surprised to read an article this month reporting that Continuing Care Retirement Communities (CCRCs), also known as Life Plan Communities, are experiencing not just growth in occupancy over the last 12 months, but comprise "the only segment of senior living and long-term care to see increased occupancy in 2018." Lois Bowers, senior editor at McKnight's Senior Living provides the summary of the study:
The stabilized occupancy rate for CCRCs has increased 30 basis points to 91.5% over the past 12 months and has stayed in the low 90s for the past 10 years, according to the company's senior housing research national report for the first half of 2018.
“Rent growth remains strong, with the average advancing 3.2 percent to $3,322 per month in 2018,” the authors wrote about CCRCs, also known as life plan communities.
Independent living is the big draw in these communities, where many operators are reducing the number of skilled nursing beds, according to the report.
For more, read CCRCs Alone in Occupancy Increase This Year, Report Says.
Monday, March 26, 2018
Maryland is among the several states putting serious energy into modernizing and reforming rules governing guardianships, with major new rules that took effect on January 1, 2018. In Bifocal, the journal of the ABA Commission on Law and Aging, the Honorable Karen Murphy Jensen, who chaired a multidisciplinary workgroup tackling the state reforms, describes the process during an interview. She notes the work ahead for many:
Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality.
Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.
For more, read: Maryland Judicial Workgroup Spearheads Guardianship Reforms, Vol. 39, Issue 3, Bifocal.
March 26, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, March 23, 2018
On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations, calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships.
As set forth in the press release, NCD's findings include:
- Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
- Capacity determinations often lack sufficient scientific or evidentiary basis.
- Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
- People with disabilities are often denied due process rights in guardianship proceedings.
- Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
- Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
- There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.
NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.
Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.
My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.
March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, March 22, 2018
At the invitation of the editor for the ABA Commission on Law and Aging's journal, Bifocal, I wrote a recent article on The Perils of Serving as a Financial Caregiver. I described a fundamental challenge:
What are the family dynamics? Will appointment of one individual create a trap whereby an overlooked or disgruntled offspring, sibling or spouse demands an accounting? Even successful defense against a weak claim will involve costs to the financial caregivers and to the principal's estate. Family dynamics can also change over time, especially as feelings of resentment, guilt or denial begin to color relationships. Consider whether greater transparency within the family at all phases of the relationship involving handling of financial matters will deter later problems.
Using an article in the The New York Times today, my words of caution appear mildly framed, compared to the reality of what appears to be one family's deeply embedded dynamic following the death of the parents, pitting two sons against a daughter and her husband over the family fortune in Arkansas.
“I want this finished, over and done,” Sanders McKee [one son] said in his deposition. “I am tired of wasting my life. She needs to stop wasting her own. And I’m tired of this. I’m absolutely exhausted with it.”
But that was in August 2014, and the legal battle continues, costing all sides money and time. The Noels [daughter and son-in-law] estimated that they have spent $1 million on legal fees in the case, and they’re not resting.
Aside from the cost, the case also demonstrates the strain being a trustee can put on family members.
For the full cautionary tale, read Are Millions Missing? Some Relatives Want to Know. Others Don't, by Paul Sullivan.
Hat tip to my Dickinson Law colleague, Professor Laurel Terry, for the pointer to this interesting New York Times piece.
Friday, January 26, 2018
New Mexico Legislature Considers Comprehensive Reform of Guardianship Laws, Following Fraud & Embezzlement Scandals
In a bipartisan effort, two New Mexico state senators have introduced Senate Bill 19 -- some 187 pages in length -- in an effort to completely overhaul the state's laws governing guardianships in New Mexico. The proposed changes, which largely track the Uniform Law Commission's recommendations for "Guardianship, Conservatorship and Other Protective Arrangements," will make such proceedings open to the public and require more notification of family members about the process. The reform follows high-profile scandals involving two companies that are alleged to have "embezzled millions of dollars of client funds," while appointed-guardians also sometimes restricted family access to their wards.
Hearings on the bill began on January 25, 2018, during the regular 30-day session of the legislature. From the Albuquerque Journal's coverage on the reforms:
Under the bill pending at the Roundhouse, legal guardians would not be able to bar visitors – both in person and via letters and emails – unless they could show the visit would pose significant risk to the individual or if authorized to do so by a court order.
[State Senator and Co-Sponsor of SB 19 Jim White] said the legislation does not call for any additional funding to be appropriated, though it could shift some money from the state guardianship commission to the courts for administrative duties. His bill is the only bill filed so far on the issue of guardianships, though others could be introduced in the coming weeks.
Meanwhile, the proposed law would also permit bonds to be required of conservators – a protection already proposed by the New Mexico guardianship commission and recently put into place by district judges in Albuquerque.
For more on the criminal charges filed against executives at Ayudando Gaurdians Inc. and Desert State Life Management, read Who Guards the Guardians? by Colleen Heild.
January 26, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, January 24, 2018
According to reports from Hawaii media, the state has a growing number of unlicensed long-term care facilities for the elderly and disabled. One critic describes the problem as facilities that have "gone rogue." I strongly suspect that Hawaii isn't alone on the issue, where providers operate in the shadows of the law, seeking to avoid regulations setting minimum standards, authorizing inspections and implementing other state oversight. Operators push back on regulation, citing the costs of compliance. Certainly, I've seen issues in my own state of Pennsylvania, where some operators attempt to change their names or identities to avoid whatever is viewed as the latest or most demanding regulations. I remembering watching as an employee of one long-time, respected provider of "assisted living," chipped those words off the granite sign at the front of the property, part of his boss's effort to avoid Pennsylvania's then "new" regulation of assisted living operations.
Legislators in Hawaii have introduced new legislation in an attempt to plug the oversight holes, but operators are pushing back:
Care home operators, case managers, industry regulators and others filled a conference room Monday at the [Hawaii] Capitol for a tense briefing about the consumer protection, fairness and enforcement issues that these unregulated facilities present.
Rep. John Mizuno, chair of the Health and Human Services Committee, said he and health officials have crafted a bill that they hope cracks down on the problem. “We cannot lose any more kupuna,” he said. “No one else dies. That’s it.”
The situation has gotten to the point that some health officials are worried that Hawaii’s rapidly aging population may end up with unsafe options for their care. “If the Legislature is unable to stop this trend, more licensed facilities will drop out and this will place more seniors at risk,” said John McDermott, who has served as Hawaii’s long-term care ombudsman since 1998.
By the way, "kupuna" is a Hawaiian word for elders, grandparents or other older persons. For more information, read "Why Hawaii's Unlicensed Elder Care Industry Is Out of Control," by Nathan Eagle," and review HB 1911, which seeks to authorize Hawaii's Department of Health to investigate care facilities reporting to be operating without an appropriate certificate or license.
January 24, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Tuesday, January 23, 2018
Pennsylvania Attorney Charles Shields and former Dickinson Law Librarian [now West Virginia Law Librarian] Mark Podvia have teamed to present a provocative history of public pensions and public corruption, using Pennsylvania as the focus. The first of their two-part series is available in the January 2018 issue of the Pennsylvania Bar Association Quarterly. For an overview, the authors write:
On June 12, 2017, Pennsylvania Governor Tom Wolf signed a bill authorizing significant reform of the Commonwealth's public pension system. The law will replace the current traditional pension system with three 401(k) style options for future state employees and public school teachers. This is the first article in what will be a two-art series on the laws regulating public pensions and pension forfeitures in the Commonwealth of Pennsylvania. This part will examine the historical development of public pensions and provide an overview of the public corruption in the Commonwealth [tied to these pension systems]. The second part will examine the adoption and application of the Pennsylvania pension forfeiture law.
To provide more incentive for our readers to track down this disturbing history, here's a concluding line from part one of the series:
The combination of a corrupt political system with public pension funds -- ranging from local retirement systems, small but with little oversight, to large statewide funds -- created a situation open to graft and corruption.....
January 23, 2018 in Consumer Information, Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 18, 2018
The Wall Street Journal has an update article this week on the financial health of the long-term care insurance industry, detailing recent rate increases and reminding us that even with contraction of this specialized market for sellers of new policies, there are still more than 7 million policies affected by the inadequate pricing structure issues.
Steep rate increases that many policyholders never saw coming are confronting them with an awful choice: Come up with the money to pay more—or walk away from their coverage.
“Never in our wildest imagination did we consider that the company would double the premium,” says Sally Wylie, 67, a retired learning specialist who lives on Vinalhaven Island, Maine.
In the past two years, CNA FinancialCorp. has increased the annual long-term-care insurance bill for Ms. Wylie and her husband by more than 90% to $4,831. They bought the policies in 2008, which promise future benefits of as much as $268,275 per person. The Wylies are bracing for more increases.
Even with the rate increases, companies are looking at losses in anticipation of claims as existing policy holders are now aging into a claims mode. General Electronic Company, has attempted to reassure shareholders about the impact of its LTCI business on profits.
Only a dozen or so insurers still sell the coverage, down from more than 100. General ElectricCo. said Tuesday it would take a pretax charge of $9.5 billion, mostly because of long-term-care policies sold in the 1980s and 1990s. Since 2007, other companies have taken $10.5 billion in pretax earnings charges to boost reserves for future claims, according to analysts at investment bank Evercore ISI. . . .
Almost every insurer in the business badly underestimated how many claims would be filed and how long people would draw payments before dying. People are living and keeping their policies much longer than expected. After the financial crisis hit, nine years of ultralow interest rates also left insurers with far lower investment returns than they needed to pay those claims.
Long-term-care insurers barreled into the business even though their actuaries didn’t have a long record of data to draw on when setting prices. Looking back now, some executives say marketing policies on a “level premium” basis also left insurers with a disastrously slim margin of error.
“We never should have done it, and the regulators never should have allowed it,” Thomas McInerney, president and chief executive ofGenworth FinancialInc. since 2013, says of the pricing strategy. “That’s crazy.”
For more of this detailed article, see Millions Brought Insurance to Cover Retirement Health Costs. Now They Face an Awful Choice. Our thanks to University of Illinois Law Professor Dick Kaplan and New York attorney Karen Miller for bringing this article to our attention.