Monday, October 15, 2018

Rural and Tribal Elder Justice Summit

Registration is now open for the Rural and Tribal Elder Justice Summit scheduled for November 14-15, 2018 in Des Moines, Iowa. Here is info about the program

On World Elder Abuse Awareness Day 2018, the U.S. Departments of Justice and Agriculture announced a joint Statement of Action to promote elder justice in rural and tribal communities. Although more than 20 percent of older adults live in rural America, rural and tribal communities face unique challenges in their efforts to combat elder abuse, neglect, and financial exploitation.

To advance this priority, the Department of Justice is hosting a Rural and Tribal Elder Justice Summit on November 14–15, in Des Moines, Iowa. This Summit will bring together a diverse group of experts and elder justice professionals to: (1) identify the challenges rural and tribal communities face in responding to elder abuse; (2) identify promising practices, resources, and tools available to rural and tribal communities; and (3) explore what more can be done to break down silos and foster greater collaboration at the tribal, local, state, and federal levels.

Please join us for this important event and help us to advance elder justice in rural and tribal communities.

For more information about the summit and rural elder justice topics, please visit the Elder Justice Initiative website

 

To register for the summit, click here.

October 15, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 10, 2018

Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill

As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year.  Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.   

Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians.  But this one senator's late-breaking concerns triggered another delay.  Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.  

Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic.  House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.  

The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators.  Sounds like a commendable purpose.  But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia.  One member of the  House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future. 

Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time. 

Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families?   It may not matter when the train is running at full steam.

 

October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 4, 2018

Is a Power of Attorney a "Contract"?

I teach contract law and I teach elder law, and often those silos overlap.  But recently someone asked me whether a "power of attorney" was a contract.  Somehow I had not not considered this topic before.  My first reaction was "no, not usually," although certainly POAs have contract-like implications once the agent takes action using the POA as authority.  I tend to think of POAs and similar appointments of an agent as bound by rather distinct "fiduciary law" obligations, as well as the limitations of the language in the POA itself and any statutory law, rather than traditional contract law principles. But perhaps my first instinct is wrong.  One significance of categorization is when determining what statutes of limitation applies to any violation.  It turns out the issue usually arises in the context of liability for allegations of misuse of authority.       

What do you think? At least one court believes POAs are contracts, at least for purposes of applying principles of interpretation.  A Court of Appeals opinion notes, when deciding whether family-member agents had authority to "self-deal" when handling real estate transactions in the name of the principal, that "Because a power of attorney is a contract, we interpret its provision pursuant to the rules of contract interpretation. . . . "  See Noel v. Noel, 225 So. 3d 1114, 1117(Louisiana Ct. of Appeals, 2017).    

For additional perspectives see the discussion of the Alabama Supreme Court, including the dissent, in Smith v. Wachovia Bank, 33 So. 3d 1191, 1202 (Ala. 2009).  

 

 

October 4, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (3)

Friday, September 28, 2018

Aging, Law and Society CRN Call for Papers in Advance of 2019 Annual Meeting in D.C.

The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.

For this workshop, proposals for presentations should be submitted by October 22, 2018. 

This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.

The CRN encourages paper proposals on a broad range of issues related to law and aging.  For this event, organizers especially encourage proposals on the following topics:

  • The concept of dignity as it relates to aging
  • Interdisciplinary research on aging
  • Old age policy, and historical perspectives on old age policy
  • Sexual Intimacy in old age and the challenge of “consent” requirements
  • Compulsion in care provision
  • Disability perspectives on aging, and aging perspectives on disability
  • Feminist perspectives on aging
  • Approaches to elder law education

In addition to paper proposals, CRN also welcomes:

  • Volunteers to serve as panel discussants and as commentators on works-in-progress.
  • Ideas and proposals for themed panels, round-tables, or a session around a new book.

If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"  

September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)

Thursday, September 27, 2018

Rhode Island's Brown University Student Investigators Tackle Topic of Elder Abuse Prosecutions

Recommended reading!  The Rhode Island Providence Tribute published a series of in August and September 2018 that flow from a student journalism project at Brown University in Rhode Island.  The team of students conducted an investigation over the course of a year, looking for the outcome of elder abuse allegations in the state.  What they found were plenty of arrests but very few successful prosecutions.    

Over two semesters, four student reporters pulled hundreds of court files and police reports of people charged with elder abuse to explore the scope of the problem and the way law enforcement and prosecutors handle such cases. In addition, the reporters used computer data purchased from the Rhode Island judiciary to track every elder-abuse case prosecuted in Rhode Island’s District and Superior courts over the last 17 years.

 

The student project, sponsored by a new journalism nonprofit, The Community Tribune, was overseen by Tracy Breton, a Brown University journalism professor and Pulitzer Prize winner who worked for 40 years as an investigative and courts reporter for The Providence Journal.

 

As part of the year-long investigation, the students analyzed state court data to evaluate how effective Rhode Island has been at prosecuting individuals charged with elder abuse. This had never been done before — not even the state tracks the outcomes of its elder-abuse cases. The data, based on arrests made statewide by local and state police, was sorted and analyzed by a Brown University graduate who majored in computer science.

 

The investigation found that 87 percent of those charged with elder-abuse offenses in Rhode Island over the 17-year period did not go to prison for those crimes. Moreover, fewer than half of those charged were convicted of elder abuse. This left victims in danger and allowed their abusers to strike again and again.

The above excerpt is from the first article documenting the students' amazing  investigation. I definitely recommend reading the following articles.  Caution: there is a paywall that appears after you open some number of articles on the Providence Tribune website, so if you aren't in the position of being able to pay for all the articles, you may want to prioritize the order in which you "open" the individual parts.  

Part 1: Reported Attacks Are on the Rise, Yet Perpetrators Avoid Prison

Part 2:  Barriers to Prosecution Leave Victims at Risk

Part 3: Creating a Stronger Safety Net for Victims

Part 4:  Mother and Son Locked in a Cycle of Violence

Part 5:  Police Training is Crucial Part of Solution

Part 6: When a "Guardian" Becomes a Fiscal Predator

Part 7:  Gaming the Systems is Easy for Guardians

Part 8: Scammers Prey on Victims' Trust and Fear

Part 9: Exploitation Puts a High Price on Friendship

Part 6 is somewhat different, as it tracks the "successful" prosecution of a court-appointed guardian who pled "no contest" in 2015 to charges of embezzling money from an 80-year old elderly client.  The embezzlement scheme allegedly involved false claims for services and double-billing.  According to other news sources, the guardian, an attorney who was eventually disbarred in connection with her plea, was required to pay more than $130k in restitution and serve 30 months of home confinement in lieu of a "suspended" sentence of seven years in prison. 

September 27, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 25, 2018

Iowa Supreme Court Case Demonstrates Significance of "Vulnerable Person" Standards in Elder Abuse Cases

Protection laws may be predicated on proof that victims were unable to protect themselves because of a "mental or physical condition."  Or sometimes the laws define a right to protection as arising when the person is of a certain age and "because of that age" is unable to protect him- or herself. 

The Iowa Supreme Court explained Iowa's vulnerable person exploitation standard in a recent case arising from a request for an order protecting a 69 year-old woman from her son:

We find the following elements need to be proved by a person claiming elder abuse to qualify as a vulnerable elder as defined in  [Iowa Code] section 235.F.1(17): (1) The person must be sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition. Id. The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder as defined in section 235F.1(17). . . . 

 

The district court viewed the testimony and concluded Chapman's age alone made her a vulnerable elder.  In our de novo review, we give weight to the district court's finding and find Chapman's age made her unable to protect herself from elder abuse.  She gave all her assets to her children.  She was unemployed with a fixed income.  [Appellant son] demanded $35,000 from her to stay in the mobile home [she had originally owned].  At her age, she was unable to pay him.  She voice a concern that she was to old to handle the eviction notices [he] was giving her. 

 

In summary, [the son] took advantage of Chapman due to her age and financial condition.  The evidence supports a finding Chapman was a vulnerable elder.  The purpose of the elder abuse statute was to allow our elderly population to seek relief from actions such as Wilkinson's without the expense of a more costly and time consuming action that others argue are appropriate under the circumstances.  

For the full opinion, see In re Petition of Chapman, 890 N.W. 2d 853 (Iowa 2017). 

September 25, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 23, 2018

Kicked Out of ALF?

My colleague and dear friend, Professor Mark Bauer, sent me this story from CNN.   Kicked out of assisted living: What you can do focuses on the situation where "[a]cross the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that 'we can't take care of you any longer.'"  This happens more often than you think. The article cites  2016 statistics thath show "[e]victions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded -- a number that experts believe is almost surely an undercount."

The article notes often there is little recourse, especially with regulations at state levels varying.  The reality?

While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn't follow a facility's rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident's needs exceed its ability to provide care -- a catchall category that allows for considerable discretion.

Unlike nursing homes, assisted living facilities generally don't have to document their efforts to provide care or demonstrate why they can't provide an adequate level of assistance. In most states, there isn't a clear path to appeal facilities' decisions or a requirement that a safe discharge to another setting be arranged -- rights that nursing home residents have under federal legislation.

Then there are situations where the ALF takes the position they can't care for the resident any longer, or transfers the person to the hospital and refuses to allow them to return on discharge. As is often the case, the article notes the ALFs offer justifications for the evictions.

The article suggests these tips for prospective residents and families:  "ask careful questions about what the facility will and won't do... What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?... Review the facility's admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they've made ... in writing." Get a doctor's evaluation when the ALF says it can't provide the care, contact the long-term care ombudsman, file suit, seek relief under the ADA and look at adjusting expectations.

The article is accompanied by a video.  Check it out. Thanks for Professor Bauer!

September 23, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Friday, September 21, 2018

The Nitty Gritty Details of Adult Guardianship Reform (Part 3)

This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.  

Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here.  A key amendment is now under consideration, in the form of AO9253.  These amendments:  

  • Require counsel to be appointed for all allegedly incapacitated persons;
  • Require all guardians to undergo a criminal background check;
  • Require professional guardians to be certified;
  • Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).

Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates. 

A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf.  His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:  

The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.

 

As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).

The devil is in the details for any legislative reforms.  It is often an "all hands on deck" effort to secure passage, especially in an election year.  

Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?   

September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 20, 2018

Focusing on the Bigger Picture in Adult Guardianship Reform (Part 2)

Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws,  here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?

Troubled histories have emerged across the nation.  Public concern has grown around the need for more careful consideration of the roles played by guardians.  For example, events in recent years have highlighted the following problems:

 

  • In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018. 
  • In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals.  This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
  • In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.   

 

The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians.  The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.

 

While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards.  Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System.  The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries. 

Continue reading

September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 19, 2018

Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)

Pa State CapitolFor the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature.  Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018. 

 

Today, let's begin with background.  First, here is the status of pending legislation and the timetable that could lead to passage:

 

Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws.  The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission.  The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16).  The current bill was approved and voted out of Senate committee in June 2018, but then tabled.  Although the schedule is tight, there is still time for action by both house before the end of the session in November.   If not fully passed and signed this year, a new bill must be introduced in the next legislative session.

 

The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has  scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.

Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:

In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force. 

 

Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60.  The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%.  Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.

 

When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”  

 

The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes.  Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:

  • Guardianship monitoring is weak, if it occurs at all.
  • Training is not mandated for professional or non-professional guardians.
  • Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
  • The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.

 

The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.

 

Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts.  The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians.  These rules are scheduled to become fully effective by July 2019. 

    

Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop

 

Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules.  Key substantive reforms require legislative action.  Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor).  After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.

Continue reading

September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, September 13, 2018

State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response

Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.   

News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires.  Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan. 

As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017.  The complaint also seeks lifetime bans for  individual administrators.  While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.  

The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present.  The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have  keys.  It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents."  Family members of the residents and emergency responders conducted the remaining evacuations at both locations.

The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article)  to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly."  As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans.  It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living.   The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice." 

The state's suit comes a few days after news of a reported settlement of a civil suit  for undisclosed terms, filed on behalf of 17 residents of Villa Capri.  

September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 12, 2018

Will New Long-Term Care Products Fare Better than "Traditional" Policies?

Last week, students in my Elder Law class at Dickinson Law had the benefit of a fascinating, detailed presentation by Pennsylvania's Deputy Commissioner of Insurance Joseph DiMemo about the history of insolvency for Penn Treaty American Network and American Independent Insurance Company as sellers of long-term care insurance policies.  In 2009, the State took the reins as the receiver for the two companies' administration of more than 126,000 policies sold nationwide. 

From the history, I would summarize reasons for failure of long term care insurance in its "traditional" form as including the following:

  1. Selling products with a promise or at least a strong expectation of level premiums, especially in the early years of the industry.  While contract language permitted companies to seek rate increases, the companies often delayed asking for increases or were frustrated by states that refused to grant requested increases;
  2. Assumptions made about "lapse" rates for policyholders that proved to be inaccurate;
  3. Assumptions made about "interest" rates for invested premiums that proved to be inaccurate, even before the 2008-10 financial crisis;
  4. Assumptions made about lower morbidity and higher mortality that proved not to be accurate for policyholders overall;
  5. The continued use of invalid assumptions about future premium rate increases. 

In light of this tour through history, I was interested to read about New York LIfe Insurance Company's description of its "new and innovative long-term care insurance product" in its press release dated September 5, 2018:  

A new long-term care solution announced today by New York Life, NYL My Care, promises to make the purchase of long-term care insurance simpler and more affordable. The innovative product features design concepts familiar to purchasers of other types of insurance, including a deductible and co-insurance, and offers the benefit of a dividend, which can help offset future premiums. NYL My Care clients will also benefit from the peace of mind that comes from working with a mutual life insurance company with the highest available financial strength ratings.

 

“New York Life is committed to helping people plan for the future, which includes protecting themselves and their loved ones from the financial burden of an extended health care event,” said Aaron Ball, vice president, New York Life Long-Term Care. “NYL My Care’s simpler, first-of-its-kind product design will help more people understand, access and afford the protection they need against the potential cost of long-term care.”

 

NYL My Care covers a wide range of long-term care needs, including home care, community-based care and facility care, and offers four pre-designed plan levels ... bronze, silver, gold and platinum. 

For more on so-called "hybrid" or "asset" based products that couple long-term care benefits to annuities or life insurance polices, read New Life Insurance Brings New Innovations to Long-Term Care Insurance Market from Forbes.

September 12, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 11, 2018

How Lack of Transparency Harms "Senior Living" as an Industry

I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance.  The questions I've received are a reminder that "transparency" is a big issue.  As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable."   I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities.  The problem is that many prospective clients do not know who they can trust, and many end up trusting no one.  They end up not making any advance plan.

For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan.  Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership."  If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites.  At least as of the time of my writing this blog post, there's only "good news" on the company's website.   

The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes.  I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name.  But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.  

Some providers will say that the problem is that "bad news" is over-reported.  I don't think that is actually true.  Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options.  Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers.  Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.  

States, however, have unique opportunities to learn from their roles as receivers for troubled operations.  Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success?  And if not the regulators, why not have the industry itself publish standards of financial health.

September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, September 10, 2018

Even in Paradise: An Accusation of Elder Exploitation

Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.   

The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.

 

 Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.

 

A key court hearing in a legal fight over the trust is scheduled for Monday.

 

Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.

 

As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.

 

Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.

For more, read Foundation Board: Protect Hawaiian Heiress' Millions. 

While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger.  Another article describes Ms. Worth as a "longtime caregiver."  See A Cautionary Story of Elder Financial Abuse.  Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice.  See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.

September 10, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 4, 2018

Podcast about Brooke Astor Case

Thanks to Julie Kitzmiller for sending me the link to a podcast at AARP on the Brooke Astor case.   Brooke Astor: Famous Socialite Robbed is one in a series (this one is #18) of podcasts on "the Perfect Scam".   The podcast runs about 25 minutes. Here's a description:

A prominent philanthropist and the epicenter of the New York society scene, Brooke Astor lived a tumultuous but glamourous life. Left a fortune by her third husband, Vincent Astor, Brooke planned to live out her later years at her country estate. But when Brooke’s son refuses to let her do so, then sells his mother’s favorite painting (worth over $30 million), grandson Philip decides to step in. Philip’s efforts to return his grandmother to the country home she loved would uncover one of the most prominent cases of financial elder abuse in U.S. history, with millions lost and a family torn apart.

A time-coded transcript accompanies the podcast and is available here.

 

September 4, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink

Friday, August 31, 2018

How Should Non-Wage Compensation of Live-In Caregivers Be Analyzed for Fairness?

Professors Adam Hofri-Winogradow (Hebrew University of Jerusalem) and Richard Kaplan (University of Illinois) have an interesting new article, addressing how different countries analyze property transfers to caregivers.   They recognize that, broadly speaking, reviewing authorities tend to treat family members differently than they treat professional caregivers when it comes to questions about undue influence or other theories that may invalidate a transfer as unfair. Further, they recognize that policies may differ for live-in caregivers versus hourly helpers.   Also, on a comparative basis, countries may differ on how a governmental unit provides employment-based public benefits for home carers, thus perhaps influencing how family members view pre- and post-death gifts to caregivers.

From the abstract:   

In this Article, we examine how the United States, Israel, and the United Kingdom approach property transfers to caregivers. The United States authorizes the payment of public benefits to family caregivers only in very restricted situations. The U.K. provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. All three jurisdictions rely on family caregivers working for free or being compensated by the care recipients. We examine the advantages and disadvantages of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient, and claims against the recipient's estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the United States, a model funded exclusively by public money is probably impossible.

For more, read Property Transfers to Caregivers: A Comparative Analysis, published in June by the Iowa Law Review.  

August 31, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, International, Property Management, State Cases | Permalink | Comments (0)

Thursday, August 30, 2018

An Interesting Case About Effectiveness of Arbitration Agreements in LTC Settings

In my 1L Contracts course, I often discuss binding arbitration agreements, including those used as part of a package of admission documents in long-term care settings. I find that students tend to approach the subject from strong personal viewpoints.  Some express their assumptions that  arbitration is faster and less expensive than court-based litigation.  Others, upon hearing the possible costs of arbitration and the rights that may be waived as a result of signing these agreements without careful thought or legal advice, ask whether they are "void" as unconscionable.  We discuss the history of litigation in the nursing home realm, which has made the latter "contract law" challenge to be mostly unavailing.  

On Tuesday, I sat in on an interesting "arbitration" discussion in an upper division Business Entities course that began with a unit on the law of agency. The springboard was the Pennsylvania Superior Court case of Wisler v. Manor Care of Lancaster, decided in September 2015.   In the case history, the son had helped his father be admitted to a care facility for rehabilitation following a health crisis.  The son signed the paperwork for his father, including an Arbitration Agreement.  The son advised the facility he had a POA for his father, but the facility "did not obtain a copy of the power of attorney, nor could [the son] produce a copy at the time of his deposition."  These facts became important after the family brought a personal injury suit against the facility; the defendant sought to compel arbitration.  

The appellate court addressed this fact pattern as one of validity of an agency relationship between the son and father. The court concluded that without a written document or other evidence to establish the scope of authority granted to the agent, the alleged arbitration document signed only by the son was invalid to compel arbitration.   The court found there was inadequate evidence of express, implied, or apparent  authority for the son to waive his father's rights to a court-based trial, including any jury.  Further, based on the facts, the court found no grounds to conclude the son had "authority by estoppel." 

The court concludes that it is up to nursing homes to seek appropriate confirmation of the agent's authority.  Reliance on oral representations was at their peril.  "If a third party relies on an agent's authority, it must ascertain the scope of that authority at the time of reliance. . . . In other words, our decision should encourage parties seeking an agreement to arbitrate to ascertain the source of an agent's authority before allowing the agent to sign an arbitration agreement on the principal's behalf."   

Perhaps the most interesting part of the class was the fact that the author of the appellate opinion, Pennsylvania Superior Court Judge Victor Stabile, was the guest lecturer for the discussion.  He brought to bear not just his judicial experience but his commercial litigation experience to enliven the discussion.  My thanks to Dickinson Law Professor Samantha Prince for inviting me to sit in on the interesting class. 

August 30, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, State Cases | Permalink | Comments (0)

Tuesday, August 28, 2018

When Family Members Disagree about Care Arrangements....

While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements.  High profile examples of how this can arise often involve celebrities.  The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment."  From People magazine's online site comes this sad report:  

The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.

Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”

Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)

Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”

Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue.   My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog. 

August 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Friday, August 24, 2018

Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?

A number of years ago,  a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman.  This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere.  Didn't the father have a right to be a fool in love? 

We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age. 

When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed.  For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story),  with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them.  In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos

When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older.  Or,  we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."

These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood.   I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.

At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.

Continue reading

August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, August 22, 2018

Thinking Above The Bad Apples: Elder Law Attorneys Who Have Stolen from Clients

I'm giving a big sigh as I begin to type this particular blog post.  I hate the topic of thieving lawyers, and especially those who hold themselves out as elder law professionals.  But, I also can't ignore the topic.  I keep a notebook of news articles and bar association disciplinary cases on elder abuse involving lawyers and although certainly the bad apples are a tiny fraction of the profession, my notebook is growing. 

The latest news comes from New Jersey, where a high profile lawyer -- who hosted a radio show and taught seminars on elder law -- pleaded guilty in late July in state court to stealing "millions" from clients.  Robert Novy, 66, faces sentencing on September 28, and the AG recommends 10 years in state prison.  

In some ways Novy's history mirrors other cases I've followed more closely in Pennsylvania, as it began with him placing client funds into his firm's trust accounts, accounts which are usually meant to be a temporary spot for use in future client-directed transactions.  At some point he then proceeded to transfer the funds to his own operating accounts, in direct violation of statutory and ethical rules.  Also, counterintuitively, his "mature" age and experience are something I've seen with other attorney fraud cases in Pennsylvania.  Were they always bad apples or did they just stay too long in the bin?  The histories often seem to begin with the lawyer's "promise" to invest the funds for clients, relying on long-years of practice as a sign of reliability, even though, generally speaking, lawyers probably aren't the best source of investment advice. In fact, the Pennsylvania Supreme Court adopted new rules in 2014 that placed restrictions on attorneys' involvement in "investment products." 

In another way, Novy's history is unusual.  I've found that most of the big ticket thefts by attorneys from older clients involve sole practitioners.  They seem like lone wolves, operating without traditional checks and balances.  Novy, who called his firm Robert C. Novy & Associates, had other attorneys in the firm. Sadly, it seems that Novy may not have been operating solo in his fiduciary crimes, as an "associate" attorney who had also been practicing law for many years was charged with similar crimes involving client funds.  I could not find the outcome of those charges, or whether the charges are still pending. 

In these New Jersey cases, the charges date back to 2015 and 2016. I suspect delays in bringing the cases to trial or plea may be tied to efforts to "permit" the lawyers some opportunity to repay the defrauded clients by liquidating their personal assets; ultimately, however, going forward with the criminal charges (rather than "mere" disciplinary sanctions) suggests the reimbursement opportunity was unavailing.  

August 22, 2018 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)