Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Thursday, October 20, 2016
Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions. In a perfect world, merit-based criteria should be the issue, not age. At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire. The whole family was involved, but it needed to happen.
During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges. The spring initiative read:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary. I voted yes, knowing that many of the most capable judges were still in their prime at 70+
However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative. Instead, in the upcoming general election the following initiative will appear:
Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?
Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like the hide-the-ball tactics. He joined others and challenged the language. His word for the tactic? "Deceitful."
Who had the final say on which language would be used? Ironically, the Pennsylvania Supreme Court. In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.
Wednesday, October 19, 2016
University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.
From the abstract:
This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.
This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics. Thank you, Dick.
Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Monday, October 3, 2016
In the Matter of Jane Doe, a case pending in New York state courts for several years, involves tragic facts. A 37-year old woman experienced cardiac arrest in 2003 following complications during delivery of her third child. With a cascading series of events, "Jane Doe" suffered anoxic brain damage and spastic quadriparesis, and became dependent on a respirator and full time care in a nursing home's ventilator unit. Her husband, John D., was initially appointed as her personal needs guardian, while a separate person, an attorney, was appointed property management guardian. In 2012, John D initiated measures to remove his wife's life support; litigation ensued when other family members opposed the proposed withdrawal. After more than a year of proceedings, John D. stepped down as special needs guardian and in 2012, the court appointed one attorney as legal counsel for Jane Doe, and a separate attorney as the new special needs guardian with authority under New York law to determine the patient's health care, including any decision to withdraw life supports.
In 2016, a New York Court held extensive hearings on the surrogate decision of the special needs guardian to withdraw life support for Jane Doe. The court heard testimony from medical professionals, friends and relatives of Jane Doe, including those who recounted conversations with Jane, offered to show that she would not want life sustaining measures to be withdrawn. The testimony, summarized in the opinion, is wrenching. Ultimately, on August 19, 2016, the court issued a detailed ruling, finding that the decision of the special guardian to withdraw life support was supported by the evidence. The court denied the petition of family members opposing termination of life support but also stayed its final order for 60 days to permit further appeals.
On one level, this is case is another window into the use of courts for end-of-life decision-making. But the case also highlights the important roles potentially played by lawyers for the incapacitated person, including as appointed legal counsel for the incapacitated person and separately, as the surrogate decision maker. The surrogate's experience as an elder law attorney was viewed by the court as important to her credentials.
Here are the court's reasons for accepting the surrogate's decision:
Friday, September 30, 2016
Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim
I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania. A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.
In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support" law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied. N.J. filial support obligations are more limited than those affecting families under Pennsylvania law. Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents. See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question. The disabled son was 29.
The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language. At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.
Wednesday, September 28, 2016
I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?" It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client. The "family" is generally not the answer to "who is your client?," even if you represent more than one family member. From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:
By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.
Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%.
The case was settled, and Silva’s staff deposited the check into her operating account. A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.
While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.
The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory. Different accounts for different clients. While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction. The $64,000 question just got a whole lot more expensive for that lawyer.
My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.
Sunday, September 11, 2016
Over the weekend, I caught the recently released movie, Hell or High Water. Both "contract law" and "elder law" figure into the plot. Warning: Spoilers ahead -- so don't keep reading if you don't want to know.
The timeless and yet still "modern" plot -- with sons trying to save the family homestead from the bank -- has a few good West Texas twists (although the movie was mostly filmed in my old stomping grounds of New Mexico). I enjoyed the play on words with the title of the movie from a legal perspective. The bank's "reverse mortgage" on the homestead has a payoff clause that bars any excuses for nonpayment, such as Acts of God or other hardships. In legal circles such clauses have are called "come hell or high water" terms, rejecting any "force majeur" excuses for late payments. So the brothers are up against the clock. Can they steal enough from the very bank conglomerate that made the loan in order for them to get the mortgage paid off by the deadline? Good character actors abound, including two waitresses who steal the scenes in small town diners and Jeff Bridges at the other end of a Texas journey he began 45 years ago with The Last Picture Show.
The reverse mortgage is the elder law part of the plot. The movie hints the aging mother was loaned just $25,000 on the homestead (where oil may be found) -- enough to be difficult to pay off (especially with taxes and fees), but not enough money to truly save her from her debts. While the plot stretches the realities of reverse mortgages, in truth such mortgages are typically very high cost loans, and are not easily refinanced.
Friday, September 9, 2016
When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents. Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds. I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.
More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers. An Arizona newspaper chronicled the issues earlier in the year:
For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.
As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.
One in particular was special to the Pinal County supervisor.
It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.
Last week, the memorial disappeared.
When dozens of crosses along Arizona highways disappeared suddenly, families protested. They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving. The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.
The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:
Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.
Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....
- Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
- Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.
It turns out that states across the nation have different laws and policies governing roadside memorials. And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.
Monday, August 29, 2016
We often report on crimes against older adults on this blog, but last week an 80-year-old former University of Arizona professor pleaded guilty to theft of more than $80,000 from his employer. How did he accomplish that?
The animal sciences professor was in charge of the land-grant university's "Meat Store" in Tucson and was charged with diverting thousands of dollars in proceeds from sales of meat into his own bank accounts. John Marchello worked for U of A for more than 50 years, and retired just days before his indictment in 2015. Indeed, I attended U of A many moons ago, and as a former 4-Her who took a few Ag Sciences courses along the way, I probably even took a "meats lab" course from him.
Talk about alternative "long-term care" planning. Sadly, Marchello is scheduled to be sentenced in November and faces a potential sentence between one and three years for the Class 4 felony.
There is also a civil suit pending, alleging more than $200,000 in theft. For more, see Longtime UA Professor Pleads Guilty.
Tuesday, August 23, 2016
Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31
Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.
These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation. It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.
Tuesday, August 16, 2016
Last weekend, the Arizona Republic newspaper carried a Question and Answer column that caught my eye. The question began:
My grandmother lives in Scottsdale, and my wife and I live in Chicago. We only visit her two or three times a year. Although we thought my grandmother was still able to manage her financial affairs, she recently called us to say that she was being evicted from her Scottsdale home for nonpayment of HOA dues. My grandmother owns her $450,000 hoe free and clear....
HOA dues only totaled $700 originally. After the late charges, interest, and legal fees, however, there was almost $8,000 owed at the foreclosure sale two weeks ago.
How often do crises involving aging loved ones begin with the words "I thought she was doing well living alone until...?" Here the concerned grandson jumped into action and the consumer advisor suggested a range of options, including working with the "investor" to resolve the ownership and equity issues. For more you can read Grandmother Loses Home to HOA Fees on the PressReader service for the Arizona Republic, August 14, 2016.
Wednesday, July 20, 2016
I wanted to make sure you didn't miss these developments.
First, Colorado voters in November may see a ballot initiative on physician-aided dying. Proponents are collecting signatures according to an article in the Denver Post, Right-to-die initiative headed for Colorado’s November ballot. It's not a slam-dunk however. The article notes that there is opposition to the proponents efforts to place the initiative on the ballot. Proposed legislation failed previously. Stay tuned.
Second, in case you missed it, on June 30, 2016, the New Mexico Supreme Court issued its ruling in Morris v. Brandenburg, a physician-aided dying case that has been making its way through the appeals process. The court held "we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case." The court relied heavily on the U.S. Supreme Court opinion in Washington v. Glucksberg and found no specific reasons under the NM Constitution to depart from that precedent since physician-aided dying is not a fundamental right. Here's an excerpt from the opinion:
New Mexico, like the rest of the nation, has historically sought to deter suicides and to punish those who assist with suicide, with limited exceptions in the HCDA and the Pain Relief Act. However, these exceptions occurred as a result of debates in the legislative and executive branches of government, and only because of carefully drafted definitions and safeguards, which incidentally are consistent with the safeguards urged by Petitioners. Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to those previously identified in paragraph 35 of this opinion, the following reflect other safeguards relevant to our analysis... These and other provisions of the UHCDA further many of the government interests recognized by the Glucksberg Court as unquestionably legitimate, and which made Washington’s ban on physician aid in dying reasonably related to their promotion and protection…Indeed, if such exceptions and carve-outs to the historical national public policy of deterring suicide properly exist, they are certainly borne of the legislature and not the judiciary.
A summary of the opinion appeared in the July 13, 2016 eBulletin (full disclosure-I'm one of the editors).
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)
Thursday, June 16, 2016
A recent court decision in New York details the extraordinary efforts made by an individual to take advantage of a former co-worker as she aged and became affected by dementia. One of the tools of abuse was a Power of Attorney, dated 2010, that he reportedly used as his authority to isolate her from family members. The court found that he was able to then manipulate her as he controlled her finances, having the woman sign checks he later claimed were "gifts," for purposes such as to "defray costs of his visit to France to see his daughter," "to help him buy a house in Normandy," or to cover "the costs of his art exhibit in Paris." Ultimately, the court concluded that the respondent/defendant, who under New York law was in the role of fiduciary as an appointed agent, could not satisfy his burden of proof to show the alleged gifts were free from undue influence.
The trial level court entered an order finding him liable for $122,000 plus costs and interest, and restraining him from "transferring, using, spending or hypothecating any of his assets" until the judgment was paid. See Matter of Mitchell, 2016 NY Slip Opinion 50853(U), decided June 3, 2016 by the New York Supreme court, Kings County.
That is the "befriender" side of the issues. However, the court also addressed the possibility of a will executed in 2013. The discussion of the will brings into play the role of an attorney who was called by the defendant to testify at the hearing on the gift transactions, apparently in an attempt to bolster his arguments about the woman's capacity. That plan backfired.
The way it all plays out through the testimony, as recounted by the judge in his opinion, raises important questions about what could or should the lawyer have done differently.
The court wrote:
Wednesday, June 15, 2016
In a recent McKnight's News column, Registered Nurse Pam McKnally wrote an interesting and candid account of "What It's Like to Be a Nurse Whistleblower." Her experiences with retaliation -- indeed bullying-- after she complied with laws requiring to her report observations of improper use of narcotics in the workplace led her and others to advocate for changes in the law.
In April 2016, in response to the experiences of McKnally and others, Nebraska enacted changes to state law, prohibiting retaliation against whistleblowers and mandating confidentiality for the identities of anyone making reports of violations by "credentialed" health care providers. Nebraska Legislative Bill 750, amending Nebraska's law that governs a broad range of health care providers, specifies:
An individual or a business credentialed pursuant to the Uniform Credentialing Act shall not discriminate or retaliate against any person who has initiated or participated in the making of a report under the act to the department of [health and human services]. Such person may maintain an action for any type of relief, including injunctive and declaratory relief, permitted by law.
Further, the law now provides that "The identity of any person making such a report [of suspected violations] or providing information leading to the making of a report shall be confidential" and further, "The identify of any person making a report, providing information leading to the making of a report, or otherwise providing information to the department, a board, or the Attorney General included in such reports, complaints or investigational records shall be confidential whether or not the record of the investigation becomes a public record."
Whether the changes to Nebraska law, especially in the absence of a specific statutory sanction for retaliation or breach of confidentiality, will be effective to address the backlash experienced by McNally will bear monitoring. She cautions:
I resigned, as my work life was intolerable, and it was clear that I was about to get fired. The EOC investigated my claims. The costs in employee hours and attorney fees, plus fines for violations can be astronomical. Had the situation been handled differently by the Human Resource department, the outcome may have been much different.
It is time for employers to stop blaming and discrediting professionals who simply follow the law and advocate for themselves and their patients....
When nurses are happy they work hard. They are loyal and seek out constructive ways to help their organization deal with conflict. In long-term care, Medicare and Medicaid cuts mean money needs to be saved now more than ever. Keeping a business viable includes mitigating the need for attorneys and dealing with nurse turnover.
Tuesday, June 14, 2016
In Florida, the number of verified cases of elder abuse and neglect has climbed 74 percent since 2011, according to the Florida Department of Children and Families. In 2015, the statewide total was 2,525.
More than 800 people have been charged with elder abuse and neglect in Florida in the past five years, according to the Office of State Courts Administrator. More than 370 have been convicted or sentenced.
The story also offers data on a nationwide basis and discusses the difficulties in prosecuting elder abuse cases, such as the victim's close ties to the perpetrator or cognition issues of the victim
The accompanying sidebar provides statistics, Elder Abuse in Florida by the Numbers for the past 5 years, broken down by verified cases of elder abuse or neglect and criminal elder abuse or neglect.
Friday, June 10, 2016
Filial Friday: Georgia Supreme Court Rules that No Equitable "Right of Access" is Created by Filial Support Law
Adult daughter Tamara Williford filed a petition for equitable relief in February 2015, seeking a Georgia court's order that her father's current wife must allow her access to her father. Williford alleged that her father, Tommy Brown, was in poor physical health, unable to leave his home, but in good mental condition. She said she had talked with him regularly by telephone and in person, until his wife prevented her from doing so.
Apparently Mrs. Brown, Tommy's wife, was named as the only defendant in the lawsuit, and responded by denying Williford was a biological child, denying her husband was in poor health, and denying that he wanted to see Williford.
In June 2016, the trial court dismissed Williford's petition, and she took a timely appeal to the Georgia Supreme Court. Oral argument was held in February 2016.
In Williford v. Brown decided May 9, 2016, the Georgia Supreme Court (pictured above) unanimously affirmed the dismissal, finding that there was no statutory or other legal grounds alleged that would support the "equitable remedy" sought by Ms. Williford. Specifically, the court rejected the argument made on appeal that Georgia's version of a filial support law, OCGA Section 36-12-3, provided grounds for relief. That statute says:
The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.
The court concluded that this section "does not purport to confer on adult children a right to unrestrained visitation" with parents. "Moreover, Ms. Williford did not allege in her petition that Mr. Brown is a 'pauper,' much less that she believes that Hart County has or will ever have to maintain him at county expenses and then pursue an action against her."
In a footnote to the ruling, the court observes that the daughter "did not alleged and does not claim on appeal" that the wife prevented her husband "from leaving his home or communicate with persons other than Ms. Williford." Therefore, the court said it was not necessary to address whether a theory of "general habeas corpus" where a person was allegedly held "incommunicado illegally and against his will."
This seems like a very sad case. One Georgia elder law attorney suggests that "if the ruling in this case disturbs you, then perhaps it is a good time to call your local legislator."
June 10, 2016 in Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, June 9, 2016
Florida State Law Professor (and friend) Marshall Kapp has a new article out, and my recent post "He Died with Guns in His Closet" triggered him to share it with us. Marshall tackles the challenging topic of "The Physician's Responsibility Concerning Firearms and Older Patients," with thoughtfulness and candor.
Professor Kapp opens with observations and predictions about the potential for Americans to continue to own firearms as they age, even if they have declining cognition. He writes:
In the general population, the presence of firearms in the home is positively associated with the risk for completed suicide and being the victim of homicide. It is well-documented that “[g]un ownership and availability are common among the elderly”and that the rate of use of guns in suicides and homicides by older Americans is significant. Firearms, along with falls and motor vehicle accidents, cause the most traumatic brain injury deaths in the U.S. for people over age 75.
Mental illness has been found to be strongly associated with increased risk of suicide involving firearms. The disproportionate incidence and prevalence of cognitive and emotional disorders such as dementia, mild cognitive impairment, and depression--often presenting themselves simultaneously and exacerbating each other--among older persons has been identified clearly. However, many persons with such disorders do not receive a formal clinical evaluation for those issues. Age-associated decline in health status, in combination with other factors, is a risk factor for dementia.
Professor Kapp examines state laws and the collective role of the medical profession regarding firearms as a public health matter, including specific ideas about what might be an individual doctor's "duty to inquire about or report on access to weapons for a patient who demonstrates cognitive changes," and the potential for any such "duty" to impact patient choices about treatment. For example, he reports:
Under current law, physicians, with the possible exception of those practicing in Florida, have latitude to act according to their own discretion when it comes to questioning their patients about guns in the home in this context. According to a coalition of leading health professional organizations and the ABA, physicians are able to intervene with patients whose access to firearms puts them at risk of injuring themselves or others. Such intervention may entail speaking freely to patients in a nonjudgmental way, giving them safety-related factual information, answering patients' questions, advising them about behaviors that promote health and safety, and documenting these conversations in the patient's medical record (just as the physician would document conversations with their patients regarding other kinds of health-related behaviors).
On free speech implications, he writes:
The courts thus far are split in their responses to First Amendment challenges to compelled medical speech brought by physicians qua physicians in their role as patient fiduciaries or trust agents (as opposed to claims brought by physicians seeking protection in their capacity as ordinary citizens). Nevertheless, there is a strong argument for requiring that state laws compelling particular speech by physicians in their physician role be examined under at least a strict scrutiny standard.
And to further whet your appetite for reading the full article, in his conclusion, Professor Kapp advocates for certain changes in state law, including:
State statutes should authorize physicians to inquire of and about their older patients regarding patient access to firearms in the home and to counsel the patient, family members, and housemates about firearms safety, up to and including recommending that firearms be kept away from the patient. However, the states should not enact legislation that positively requires the physician to make such inquiries and engage in counseling, although states should consider a tort standard of care evolving through the common law in a direction that imposes an affirmative obligation on the physician to inquire and counsel.
The full article appears in the Spring 2016 issue of the Kansas Journal of Law & Public Policy.
June 9, 2016 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)