Tuesday, April 22, 2014
In some instances where a resident of a nursing home fails to qualify for Medicaid, the question may involve a transfer of a nonexempt asset by the resident or by someone (usually a family member) acting in place of the resident. If the nursing home is not then paid privately, a debt is incurred. Depending on the specific reasons for a ruling of ineligibility, the nursing home, as an unpaid creditor, may be motivated to challenge the transfer as "fraudulent." This in turn may trigger application of the Uniform Fraudulent Transfer Act (UFTA), as adopted in the specific state.
Along that line, there is a new article, "Reconsidering the Uniformity of Uniform Fraudulent Transfer Act," by Steven Boyajian, Esq., published this month in the American Bankruptcy Institute Journal. The article outlines proposed amendments to the UFTA currently under consideration:
"The UFTA has been adopted in 43 states, Washington D.C., and the U.S. Virgin Islands, and has not been specifically amended in the 30 years since it was drafted. Despite the UFTA's admonition that it 'shall be applied and construed to ... make uniform the law with respect to subject of [the UFTA] among states enacting it,' portions of the UFTA have been subject to conflicting interpretations by courts nationwide....
Amendments being considered by the Drafting Committee proposed to resolve the conflicting judicial interpretations of the following issues: (1) the effect of § 2's presumption of insolvency if a debtor was generally not paying its debts as they become due; (2) the standard of pleading and proof applicable to a claim that a transfer was made or obligation incurred 'with actual intent to hinder, delay, or defraud any creditor'; and (3) the allocation of burdens with respect to the elements of a claim to avoid a constructively fraudulent transfer or obligation."
In outlining the proposals, the author emphasizes the continuing nature of the discussions about UFTA proposals. One of the cases cited as part of the discussion is a nursing home collection case, Prairie Lakes Health Care System v. Wookey, 583 N.W. 2d 405 (S.D. 1998).
Pennsylvania also has a case involving intepretation of a UFTA claim in the context of a nursing home collection matter. In Presbyterian Medical Center v. Budd, 832 A.3d 1066 (Pa. Super. Ct. 2003), a nursing home plaintiff turned to Pennsylvania's filial support law as an alternative to a claim under UFTA, thereby permitting potential recovery against an adult child, without proof of fraud required.
Friday, April 18, 2014
My various search routines regularly alert me to cases involving older adults. I was reading an unpublished Washington Court of Appeals decision dated February 2014 in State v. Knopp, which at first seemed fairly straight-forward, if sad. A daughter was appealling her conviction for first degree theft from her disabled mother, theft that began through use of a Power of Attorney. The daughter contended the prosecutor misstated the law during closing argument and that her trial counsel was ineffective. She argued -- unsuccessfully -- that she was entitled to make a "claim of title" defense based on the POA. The conviction was affirmed.
On closer reading, what seemed more remarkable than the conviction was the history of opportunities and unsuccessful efforts to stop the daughter's theft. The broadly worded POA was executed by the mother in 2006 when everyone was healthy. The problems did not begin until the mother "suffered an injury in December 2008" and was placed in a rehabilitation facility. The facility recommended to the daughter that she apply for Medicaid for her mother, but the daughter later admitted she did not complete the application because she realized "most of [her mother's] income would be required to pay for her medical needs." Instead she took her mother out of the rehab facility "against medical advice" and moved her to an assisted living facility.
It seems clear from reading the opinion that from as early as April 2009, there were concerns about the daughter's role. For reasons not fully explained in the criminal case opinion, the mother was appointed a "guardian ad litem;" an "evaluator" reported the mother was suffering from dementia and lacked capacity to handle her own financial affairs; and in June 2009, the GAL obtained a "court order prohibiting [the daughter] from accessing [her mother's] accounts.
Nonetheless, the daughter apparently continued to help herself to her mother's accounts, withdrawing "several thousand dollars" between June 19 and August 3, 2009. Apparently "the bank failed to process" the court order correctly, thus allowing the continued withdrawals. And even as late as October 2009, the daughter was successful in redirecting her mother's pension and social security checks to her own accounts by direct deposit, thus bypassing the court order.
The case is an example of the challenges of preventing financial abuse of elderly or disabled persons by a persistent individual; however, it also points to the importance of functional systems of effective checks and balances once it is clear that abuse is occuring. Not easy -- not fun -- and, again, sad.
Saturday, April 12, 2014
I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons.
As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.
Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners. In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.
Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation. Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:
- In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife. In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency. (There were strong dissents to the majority's ruling,). The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters. In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid. The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
- Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
- The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders.
- In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf). Each bill passed in their respective houses. (This single sentence truncates several years of history about the negotiations, all set against the background of need for a "Vine" fix.) Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
- Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies, other legislative proposals emerged. These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers.
In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months. In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix. There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills. Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.
All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity.
At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor. Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight. By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act). Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.
There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards. The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.
Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.
Friday, April 11, 2014
It is Friday and time for a catch-up on recent law review articles. I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world. Here are highlights from recent comments and articles (minus those pesky footnotes):
"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):
"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility."
"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013):
"The costs of long term care are staggering and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."
"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):
"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support. A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."
In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining. Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman." She proposes:
"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."
Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.
Monday, April 7, 2014
Causation Proof Needed for Breach of Contract Claims Against "Responsible Parties" in Nursing Home Cases
We have another interesting appellate decision from Connecticut on the question of personal liability of an individual who signed an agreement as a "responsible party" when admitting his parent to a nursing home. The opinion is in Meadowbrook Center, Inc. v. Buchman, issued by the Connecticut Court of Appeals with a decision date of April 8, 2014.
The majority of the three judge panel concludes that the son who signed the agreement cannot be held liable, based on the evidence -- or rather lack of evidence -- in the record. Although the evidence establishes the son failed to provide all information requested by the state Medicaid department following his mother's application for Medicaid, and therefore breached duties he assumed as a "responsible party" under Section IV of the nursing home agreement, the majority concludes he cannot be held liable because there "is no evidence in the record...indicating that, had the defendant [son] complied with his obligations under the agreement, [the nursing home] would have received any Medicaid payments."
In other words, the nursing home proved breach, but not causation of damages, even though "the parties stipulated...that if the department granted Medicaid benefits to the defendant's mother, the department would have paid the facility $47,561.18." The ruling focuses on that "if," noting:
"The testimonial evidence submitted to the court demonstrated, on the one hand, that submitting the proper information to the department merely triggered a review of the resident's eligibility and, on the other hand, the submission of such information was not a guarantee of approval to receive such benefits.... [A]n eligibility services supervisor at the department...testified that the department could not determine whether an applicant qualified for Medicaid absent a review of the applicant's financial information, which was not furnished to the department in the present case. As the defendant notes in his appellate brief, the plaintiff did not ask Leveque 'if, based upon the defendant's testimony regarding the assets maintained by [his mother], he had an opinion regarding whether ... [she] would have qualified for [such] benefits.' In addition, the record before us does not indicate that the plaintiff was prevented from presenting the proper financial documentation, expert testimony, or other evidence that would have otherwise established the resident's likelihood of approval, nor has the plaintiff in this appeal directed our attention to any such evidence."
There is a complicated history to third-party liability issues in nursing home contracts, especially in Connecticut. As readers of our Blog may recall, last year the Connecticut Supreme Court declined to hold a signing family member liable for costs of the parent's care, where that individual did not have a Power of Attorney or other authority to apply for Medicaid. See "Nursing Home Contracts Revisited: The Nutmeg State Adds Spice," commenting on Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013). Further, as we note in that post, Connecticut made significant changes to its Medicaid laws effective in October 2013, as a result of a series of nursing home cases involving third-parties. In certain circumstances, Connecticut now seeks to impose statutory liability on individuals who are either transferors or transferees, connected to the resident's ineligibility for Medicaid because of disqualifying transfers.
The Meadowbrook decision is also well worth reading for anyone interested in the related but separate concepts of contract law and promissory estoppel.
Further, in a separate concurring opinion, a third judge concludes that the nursing home agreement should not be construed as imposing liability unless the "responsible party" has been shown to have misappropriated the resident's resources, because without that personal fault, the responsible party agreement becomes a "guaranty," prohibited by federal Medicaid law. The majority, however, "strongly" rejects that analysis. We'll keep our eyes open to see if the Meadowbrook case goes to the Connecticut Supreme Court.
When I first began analyzing "responsible party" liability in nursing home contracts, I became convinced the contracts drafted by many facilities created a minefield of problems. In some instances, the providers seem to intentionally blur the lines of responsibility for third-parties. On the one hand, facilities "need" agents to sign for new residents who are often lacking capacity to contract. So the admissions office points to the "no personal liability" language in the agreement signed by the third-party. On the other hand, if something does go wrong with the Medicaid application, that same facility will often be quick to point out that it is the third-party signer's obligation to fix the problem, or face potential personal liability.
The nursing homes, of course, whether for profit 0r nonprofit, are not in the business of providing free care.
The last ten years of litigation have only increased the importance for individuals to understand the significance of nursing home agreements. Individuals may want legal advice from specialists in state Medicaid law before signing the agreement; further they may need to seek legal help again if there is any hiccup in the Medicaid application process. After the Meadowbrook case, I think it is safe to say care facilities will be better prepared to prove causation of damages.
Thursday, April 3, 2014
That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.
But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75. See "Driving, Aging and Dealing with Family Dynamics."
ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys. Read "What to Do When Dad Shouldn't Be Driving."
This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive. Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers."
And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach." Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."
And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself. Read "New Study on Autonomous Cars."
Sunday, March 23, 2014
On March 11, 2014, California's intermediate appellate court ruled that a mandatory arbitration clause in an inter vivos trust would not control, where the beneficiary challenging the trust "was not a signatory to the arbitration agreement." The daughter who challenged the document alleged her mother lacked capacity to sign the newly revised agreement in question and contended the revisions were the product of "elder abuse" and undue influence. The decision offers much to consider.
In McArthur v. McArthur, the court noted enforceability of arbitration provisions in trusts was a question of first impression in California and turned to other states for guidance. In Schoneberger v. Oelze, 96 P. 3d 1078 (Az. Ct. App. 2004), the Arizona court ruled that arbitration clauses contained in trusts agreements are generally not enforceable against nonsignatory beneficiaries, a decision that was later superseded by revisions to Arizona statutes. In Rachal v. Reitz, 203 S.W. 3d 840 (Tex. 2013), the Texas Supreme Court relied on wording of the state's arbitration law in concluding a trust beneficiary can be bound to arbitrate, regardless of whether the trust document was analyzed as a contract.
In ruling against mandatory arbitration, the California court characterized one daughter's argument that "public policy" favored arbitration of trust disputes as more appropriate for the Legislature. The Court concluded that "whatever the national trend might be, [the proponent of the trust and mandatory arbitration] fails to demonstrate that any other jurisdiction would compel arbitration under the facts of this case, where the [contesting] beneficiary has not either expressly or implicitly sought the benefits of a trust agreement containing the disputed arbitration provision."
The California decision also points to several law review articles addressing arbitration provisions in trusts disputes, including a 1995 article by Yale Professor John H. Langbein, and a 2012 article by University of Missouri Law Professor S. I. Strong. By email, Professor Strong notes it will be interesting to see whether the McArthur case goes to the California Supreme Court.
While not addressed in the opinion directly, the details of the trust history in the California case also suggest another potentially interesting question, about the use of particular "mandatory" dispute mechanisms or mandated organizations that could favor a certain result.
The original McArthur trust, created in 2001, apparently granted the three daughters equal shares of their mother's estate. The challenged 2011 amendment, however, allegedly favored one daughter and as described in footnote 2, added a "Christian Dispute Resolution" provision that described the mother and that same daughter as "Christians [who] believe the Bible commands them to make every effort to live at peace and to resolve disputes with each other in private or within the Christian church." The mother as "Trustor" and the mother and daughter as "Co-Trustees agree that any claim or dispute arising from or related to the Trust as amended shall be settled by biblically based mediation and, if necessary, legally binding arbitration before the Institute for Christian Conciliation (TM), a division of Peacemaker (R) Ministries...."
So, if one challenges the very essence of the amended trust and the role of the new co-trustee, doesn't that suggest the challenger might have a uniquely steep uphill climb, whether or not a "member" of the faith or organization granted the power of enforcement?
Tuesday, March 18, 2014
Professor Donna Harkness: "What Are Families For? Re-evaluating Return to Filial Responsibility Laws"
Donna Harkness, clinical professor of law and director of the Elder Law Clinic at the University of Memphis Cecil C. Humphries School of Law, has a new article on filial support laws in the most recent issue of the University of Illinois's Elder Law Journal. In "What Are Families For? Re-valuating Return to Filial Responsibilities Laws," she concludes:
"Despite their long history, filial responsibility laws have clearly failed to remedy existing needs. The lack of uniformity in filial responsibility laws, the difficulty and cost of enforcement, along with the fact that such laws provide no coverage to those elder Americans that have no adult children to look to for support, render them a limited response at best. In addition, to the extent that filial responsibility laws are enforced, evidence indicates they would be destructive to family ties and have the counterproductive effect of further eroding and destabilizing the network of support available to elders.
Furthermore, by focusing solely on economic support, filial responsibility laws do not address the fundamental need that all persons, and most especially the vulnerable elderly, have to be supported by caring relationships. To the extent that the institution of the family, however defined, is the key to ensuring that such relationships exist, it behooves us as a society to strengthen and foster family ties through policy initiatives that reward caring relationships."
Thursday, March 6, 2014
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Thursday, February 13, 2014
In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice. Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter. Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest.
On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini. News reports point out that the court order was issued on the one year anniversary of her father's death. The parties had been under a gag order. Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices.
My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.
My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a "Face Book" approach to building momentum for social change and law reform.
Wednesday, February 12, 2014
Does your state have a statutory cause of action for "elder abuse?" While all 50 states have some form of older adult protective service legislation that authorizes state authorities to investigate and intervene when reports are made of suspected abuse, not every state recognizes the right of the affected individual to seek damages or other relief from the perpetrator by proving violation of those same laws. In states that do recognize a private right of action, the statutory grounds may provide a clear set of elements for proof of abuse, neglect, abandonment, or financial exploitation, thus supplementing the common law, and may also provide the prevailing party (sometimes limited to prevailing plaintiffs) with a right to recover attorneys fees.
California is probably the state with the best known statute authorizing private suits, including a right to seek attorneys fees, at Cal. Welf. & Inst. Code Section 15657 et seq. California's law was first adopted in 1991 as the Elder Abuse and Dependent Adult Civil Protection Act.
However, the history of application of California's law has not been trouble-free. In "Why Many Meritorious Elder Abuse Cases in California Are Not Litigated," (Winter 2013 Student Note, University of San Francisco Law Review), the author identifies several factors negatively affecting the likelihood of victim recovery, including lack of counsel willing to take cases, evidentiary issues such as confusion over burdens of proof, conflict within the victim's family affecting the lawyer-client relationship, and pressures to change or limit relief urged by institutional defendants.
Sunday, February 9, 2014
Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past. Here are the basics. I've assigned some gender roles to make the fact pattern easier to follow:
The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility. The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."
The complication is the size of the unpaid bill, more than $100,000. Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill. Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid. Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.
The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities. We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).
Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603. Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute. But who can afford to defend such a case? The facility appears to be using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage. But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other.
The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will. And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved.
For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother. The mother opposed the protection order.
Thursday, January 30, 2014
Recently I received a communication from a professional agent, the head of a nonproft guardianship organization, and someone I have watched in action for eight years. He and his team of carefully supervised agents work on behalf of elderly clients, disabled persons, and family members to handle financial matters. They are paid modestly, on a sliding scale, based on the client's income or estate. Sometimes they are operating as the court-appointed guardians, while other times their authority was granted by the principal through a POA, often with the cooperation (and sometimes the gratitude) of the family.
This professional reported to me that they "are having increasingly difficult times using our authority for legitimate purposes, to the point where we have to subpoena information from banks as the guardian, because they will not accept our appointment." Further, he reports "some banks are not honoring our POA or are adding unreasonable burdens, not required by law, leaving us unable to assist an older person."
Here is an experienced agent, who is trying do the job as a fiduciary in a highly professional manner. On the other side of the aisle are banks and other financial institutions, who have become understandably "gun shy" because of increasingly high profile cases of "bad" agents -- often family or "friends" -- who have misused their authority.
Well, as you might guess, this very topic has generated a timely CLE program! "Dealing With Financial Institutions in Estates, Trusts and with POAs" is the title of a half-day program sponsored by the Pennsylvania Bar Institute that will take place at the following dates and times:
- Tuesday, February 4, 2014, from 9 to 1:15, in Philadelphia, PA
- Wednesday, February 26, 2014, from 9 to 1:15 in Pittsburgh, PA
- Monday, March 3, 2014, from 9 to 1:15, in Mechanicsburg PA
- Live Webcast on Monday, March 3, 2014 via webcasts.pbi.org
The program will focus on "bridging the divide" between financial institutions and agents, to help both sides better understand the powers and limitations conferred by law. In additional to "family" fact patterns, the program will offer insights into fiduciaries acting on behalf of business owners. The faculty include experienced lawyers representing financial institutions and individuals -- plus one of those pesky law professor types.
Pennsylvania, as is true in other states, has a number of potential changes in law pending at the state legislature, influenced in part by the Uniform Power of Attorney Act changes, first recommended for adoption by the states in 2006. The program will provide the lates updates and trends.
For more, including remote access to the live webcast, go to the Pennsylvania Bar Institute's webpage, here.
Wednesday, January 29, 2014
Family Court & Medicaid: Does It Have a Role in Allocating Income Between Community Spouse and Nursing Home?
In R.S. v. Division of Medical Assistance & Health Services, released for publication by the Appellate Division of the Superior Court of New Jersey on January 23, the state's Medicaid agency successfully argued that a Family Court order allocating the institutionalized spouse's income to support for the community spouse was not binding on the agency in determining the Community Spouse Monthly Income Allowance (CSMIA). Thus, in the case before the court, the community spouse who had an annual salary of $22,659 was limited to the CSMIA calculation of $1,514 per month as support from her institutionalized husband, rather than the Family Court's order of $3,460 per month.
The appellate court ruling appears to be strongly influenced by facts suggesting the Family Court award, which was not opposed by the husband, was the result of Medicaid planning advice, rather than a fact-based determination of spousal support among separated or divorcing spouses. The appellate decision begins by noting the court is "asked once again to address 'the continuing tension between the State's effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses,'" quoting a previous New Jersey opinion in 2005.
Despite statutory grounds under Medicaid law to "protect" community spouses against "impoverishment" when their husband or wife goes into a nursing home, this ruling permits state calculations of Medicaid allowances to control just how much (or rather, how little) "protection" is available, at least where the allocation occurs at or near the time of nursing home admission.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 22, 2014
The always thoughtful ElderLawGuy, Jeff Marshall, has a great blog post on the complications that can arise from use of powers of attorney, especially with financial institutions. He uses Pennsylvania law to develop the topic, but there are certainly parallels in other states.
Monday, January 20, 2014
I've been catching up on reading of practitioners' blogs. I quickly came across interesting discussions of potentially cutting edge decisions in recent law and aging cases. Here's a selection:
- From Tucson, Arizona, Robert Fleming's Legal Issues Newsletter reports on the background of the Arizona Court of Appeals decision on January 2, 2014 in Savittieri v. Williams, affirming the post-death annulment of a woman's marriage for lack of capacity.
- From Dearborn Michigan and Pittsburgh, Pennsylvania, John Payne's Off the Top O' My Head, comments on recent decisions within the Third Circuit that address the use of spousal annuities or trusts in Medicaid planning. For example, he discusses the January 14, 2014 ruling in the United States District Court, Western District of Pennsylvania in Zahner v. Mackereth, that makes fact-specific rulings in three consolidated cases involving annuities and which also, surprising, revisits the dormant "Granny's Lawyer Goes to Jail" provision of federal Medicaid law. Fortunately for attorneys, the court agrees with former Attorney General Janet Reno that application of the law to legal advice is unconstitutional. Nonethless, I think it is safe to say that the Pennsylvania Department of Public Welfare's attempt to push the law is an indication of the battle lines being drawn over use of annuities.
- From Fairview, Oregon, Orrin R. Onkin's Oregon Elder Law, reports on an array of elder abuse cases, including a 2013 decision by the Oregon Court of Appeals affirming an award of treble damages under the state's elder abuse statute against an ambulence company, in Herring v American Medical Response Northwest, Inc.
Thursday, January 16, 2014
We've blogged several times in recent months about state court rulings on enforcement of arbitration provisions in nursing home admission contracts, especially in the wake of the U.S. Supreme Court's ruling in Marmet Health Care Center Inc. v. Brown, 132 S. Ct. 1201 (2012). See here, here and here.
The latest interesting decisions arrived on the same day, January 13, 2014, from the Massachusetts Supreme Court. First, in Johnson v. Kindred Healthcare Inc., the court held that although a "health care agent" operating under a written advance directive had signed the nursing home's admission agreement containing a mandatory arbitration provision governing "all disputes," such action was not an authorized "health care decision," and thus was not binding on the patient under Massachusetts' health care proxy statute.
The court notes that its decision is consistent with the view of the "majority" of courts in other jurisdictions that have considered similar issues, and emphasized the intention of the Massachusetts legislature in framing that state's governing statute:
"We frame the matter differently [than did a contrary decision by the Supreme Court of Tennessee in a 2007 decision]. That a competent principal could have decided to enter into an arbitration agreement does not answer the core question we confront: whether our Legislature intended the term 'health care decision' to include the decision to waive a principal's right of access to the courts and to trial by jury by agreeing to binding arbitration. Our health care proxy statute reflects no such intent."
The Massachusetts Supreme Court was unpersuaded by the nursing home's argument that its decision promotes "uncertainty concerning the scope of a health care agent's authority." The court reversed the trial court order compelling "mediation or arbitration," and remanded for trial on the allegations that the nursing home's negligence caused the death of a resident of the facility.
Second, on the same day, the Massachusetts Supreme Court issued a similar ruling in Licata v. GGNSC Malden Dexter LLC, having earlier transferred that case from the intermediate appellate court on its own initiative. The son's signature as "responsible party" on the contract did not change the outcome:
"[E]ven assuming that Salvatore [the son] qualified as a responsible party for purposes of giving informed consent to medical treatment, this role did not empower him to sign an arbitration agreement on [his mother] Rita's behalf."
Further, the court rejected the nursing home's argument in the Licata case that theories of "ratification," "third-party beneficiary" or "equitable estoppel" compelled arbitration of the personal injury claim, concluding that "no inequity results from denying enforcement of the arbitration agreement."
These decisions show the importance both of statutory authority and careful drafting of documents appointing agents for those wishing "freedom" from mandatory arbitration (hence, the Liberty Bell, courtesy of photographer Bev Sykes). My first reading of these two decisions suggests that attorneys in Massachusetts and states with similar health care decision-making laws will still customize the language of POAs for "general agents" acting under powers of attorney, to make it clear that any grant of general authority does not include authority to bind the principal to mandatory arbitration of nursing home disputes, even if the agent also has authority to make health care decisions. Other thoughts from our readers?
Tuesday, December 31, 2013
The Consumer Financial Protection Bureau (CFPB) has issued preliminary results on its evaluation of "pre-dispute arbitration provisions," used in many contracts for consumer financial service products, such as credit cards, checking accounts or pay-day loans. Congress commanded the study as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
Consumers probably end up viewing these clauses as triggering "mandatory" arbitration, in that consumers typically "consent" by signing agreements without any real understanding of the implications. The report summarizes both pro and con arguments on the use of pre-dispute arbitration provisions.
The study makes strong use of academic research, including recent work by Peter Rutledge (University of Georgia Law) and Christopher Drahozal (Kansas Law), Jean Sternlight (UNLV Law), and my own colleague and friend, Nancy Welsh (Penn State Law).
Much of the CFPB report focuses on what it calls the "front end" of arbitration issues, identifying a host of arbitration-related factors addressed in corporate contracts, such as opt-out rights, arbitrator selection, limits on recoverable damages, time limits for claims, and allocation of costs.
Reading between the lines of the report's preliminary findings, it seems to me to support the view that companies use arbitration as a procedural barrier to consumer challenges, including class actions. At the same time, statistics cited in the report suggest that companies may dispense with arbitration when pursuing collection from defaulting consumers, instead filing suits in small claims courts (the CFPB will address federal and other state court claims in the future).
This seems consistent with what I observed during my 10+ years with Penn State Law's Elder Protection Clinic, where we frequently represented older clients on debt claims. Many of these claims were "old" debts, where our clients had been making minimum payments for years, but were no longer able to keep up with the payments after retirement, particularly if also confronted with new debt from medical crises. I don't recall any of the collection cases being initiated by arbitration. By filing in court, the companies seemed to hope for a low-cost route to default judgments.
The New York Times cites the CFPB study in a recent editorial, calling for a change in laws to permit consumers an effective legal tool when needed to challenge certain corporate practices, pointing out that:
"In disputes over financial products — involving, say, excessive fees, inflated loan balances, faulty credit reporting, or fraud and discrimination — the damages at stake may be significant for an individual but not enough to warrant the cost of a legal challenge unless grouped in a class action. Forced arbitration also fosters abuse, since there is no check on wrongdoing that takes small amounts of money from potentially millions of customers."
The CFPB notes that its December 2013 findings will be followed by a more complete report, expected in 2014.
Friday, December 13, 2013
In Estate of Marusich, 2013 WL 6450238, decided December 10, 2013, the Wyoming Supreme Court ruled the state could recover costs for Medicaid from the community spouse's estate, where the property in question, the marital home, had been owned as tenants by the entirety at the death of the Medicaid receipient (husband). Key points include:
- Wyoming has adopted "expanded" estate recovery to include any real property in which a care-receiving individual had any legal title or interest at time of death;
- Home was titled to the individuals as "husband and wife," which created a "tenancy by the entirety" under state law;
- Husband received Medicaid benefits during his nursing home stay, until his death in 2005;
- Wife continued to live in the marital home until her death, intestate, in 2012.
The Court distinguished rulings in Minnesota and Tennessee, where the agencies were barred from applying expanded estate recovery in cases where the care-receiving spouse's interest in marital property was transferred by the Medicaid recipient into the sole name of his or her community spouse before death:
"While Barg [752 N.W.2d 52 (Minn. 2008)] and Smith [2006 WL 2114250 (Tenn. Ct. App. 2006)] ultimately reached a result consistent with that sought by the Marusich Estate, they do not support the argument that the house should not be available for recovery. In fact, those cases compel the opposite conclusion. Given Mr. Marusich owned an interest in the house when he died (unlike the reciepient spouses in Barg and Smith), it was within the Department's authority to file a lien even though his interest passed by operaton of law to Mrs. Marusich upon his death."
The outcome in Wyoming points to the significance of expanded Medicaid estate recovery, and the potential importance of estate "re-planning" once the first spouse enters into Medicaid-paid care.