Monday, January 26, 2015

NYT: Nursing Homes Seek Guardianships (And Fees) To Collect Unpaid Nursing Home Costs

In a major investigative report, The New York Times describes findings that nursing homes in counties throughout the state of New York are agressively seeking appointment of non-family members as guardians for residents of their facilities.  The trigger? Unpaid nursing home fees.  

Reporter Nina Bernstein uses the history of 90-year old Lillian Palermo to illustrate the practice, where a nursing home initiated a guardianship proceeding to displace her husband's authority as agent under a Power of Attorney, when disputes with her husband left unpaid bills, alleged to be "approaching $68,000."  

NYT  and researchers at Hunter College teamed to analyze the use of guardianships as a bill collection tool by nursing homes:

"Few people are aware that a nursing home can take such a step.  Guardianship cases are difficult to gain access to and poorly tracked by New York State courts; cases are often closed from public view for confidentiality.  But the Palermo case is no aberration,. Interviews with veterans of the system and a review of guardianship court data conducted by researchers at Hunter College at the request of The New York Times show the practice has become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.

 

In a random, anonymized sample of 700 guardianship cases filed in Manhattan over a decade, Hunter College researchers found more than 12 percent were brought by nursing homes.  Some of these may have been prompted by family feuds, suspected embezzlement or just the absence of relatives to help secure Medicaid coverage.  But lawyers and others versed in the guardianship process agree that nursing homes primarily use such petitions as a means of bill collection -- a purpose never intended by the Legislature when it enacted the guardianships statute in 1993."

While, according to the NYT, at least one court has ruled such a "tactic by nursing homes is an abuse of the law," the increase of such suits highlights the payment dilemmas faced by facilities and families as Medicaid eligibility rules narrow and as the margin tightens for coverage of costs of care.

New York is not alone in seeing guardianship cases initiated by nursing homes.  In Pennsylvania, attorneys retained by families or individuals have also sometimes challenged the practice, focusing on the use of facility-preferred guardians and the amount of fees added to the care bills in dispute.

For more, read "To Collect Debts, Nursing Homes Are Seizing Control Over Patients."

January 26, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 21, 2015

VSED + Dementia Raise New Questions About Respect for End-of-Life Decisions

A new acronym, VSED, is emerging in discussions of end-of-life decision making.  It refers to Voluntarily Stopping Eating and Drinking. However, what happens when such a plan is combined with increasing dementia? 

As addressed in Paula Span's thoughtful piece for The New York Times' "The New Old Age," it may not be possible to ensure such a plan will be honored, at least not under the existing law of most states. Consider the following example:

"Like many such documents, [Mr. Medalie's Advance Directive] declares that if he is terminally ill, he declines cardiopulmonary resuscitation, a ventilator and a feeding tube. But Mr. Medalie’s directive also specifies something more unusual: If he develops Alzheimer’s disease or another form of dementia, he refuses 'ordinary means of nutrition and hydration.' A retired lawyer with a proclivity for precision, he has listed 10 triggering conditions, including 'I cannot recognize my loved ones' and 'I cannot articulate coherent thoughts and sentences.' 

   

If any three such disabilities persist for several weeks, he wants his health care proxy — his wife, Beth Lowd — to ensure that nobody tries to keep him alive by spoon-feeding or offering him liquids. VSED, short for 'voluntarily stopping eating and drinking,' is not unheard-of as an end-of-life strategy, typically used by older adults who hope to hasten their decline from terminal conditions. But now ethicists, lawyers and older adults themselves have begun a quiet debate about whether people who develop dementia can use VSED to end their lives by including such instructions in an advance directive...."

For more, continue reading  "Complexities of Choosing End Game for Dementia."  Thanks to Elder Law Attorney Morris Klein for sharing this good article.

 

January 21, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Dementia/Alzheimer’s, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 20, 2015

Thinking More Deeply About Treating Nonlawyers Who Offer Medicaid and Estate Planning as Engaging in UPL

Earlier this week, we reported on the Florida Supreme Court's recent Advisory Opinion regarding activities by nonlawyers in "Medicaid Planning" that will be treated as Unlicensed Practice of Law (UPL). 

That piece triggered several discussions with colleagues, and thus we have more information to share. 

Stanford Law Professor Deborah Rhode, working with Lucy Buford Ricca, the Executive Director of Stanford's Center on the Legal Profession, has a relatively new article in Fordham Law Review's annual colloquium issue that deepens Rhodes' long-standing concerns about the potential impact of treating certain "nonlawyer" conduct as sanctionable under state UPL rules. In "Protecting the Professor or the Public? Rethinking Unauthorized-Practice Enforcement," Professor Rhode begins with the history behind her earliest examination of the utility of "do it yourself kits" in areas of underserved legal needs, such as divorce.  In her most recent Fordham piece, she also builds upon her 1981 survey of UPL enforcement procedures across the 50 states, by making a close examination of over 100 reported UPL decisions issued in the last decade.  Rhode and Ricca conclude that UPL enforcement needs to be more consumer-oriented and less driven by narrow interests of lawyers in protection of specialized practice. They advocate that a "more consumer-oriented approach would also vest enforcement authority in a more disinterested body than the organized bar." Their article is a must read for any Bar group considering UPL issues, including those arising in the elder law or estate planning context.

Along that same line, the American Bar Association is hosting its second "UPL School" in Chicago on April 17-18.  The purpose is to provide "a central forum for volunteer members of state and local bar UPL committees and commissions, and those charged with the prevention and prosecution of UPL violations to discuss current UPL challenges." (The first such "ABA UPL School" was held in 2013, focusing on several areas including immigration, "notario" fraud, and mortgage relief or loan modification vendors.)

January 20, 2015 in Consumer Information, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, January 19, 2015

Should Right-To-Know Law Permit Access to State Retirees' Names & Addresses?

If you were retiring, would you want marketers of insurance products and funeral services -- or similar products -- obtaining your name and address from your former employer? Pennsylvania's Right-to-Know Law could be permitting just such access to information on a large number of state retirees. 

In a decision issued January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled the Pennsylvania State Retirement System (SERS) failed to satisfy its burden to prove "a substantial and demonstrable risk" arising from a request for 15 years' worth of records containing the  "names and addresses of all retirees" from the state.  Therefore, the names and contact information of more than 1,000 retirees, or if deceased, the information on their beneficiaries, must be disclosed by SERS.  And if SERS "failed" in carrying the burden of proving why this should not happen, as the opinion demonstrates, it was not for lack of trying.

The Court recognized an exception from disclosure for retired judges and law enforcement officers on the grounds of specific "personal safety and security" language tied to those positions, contained in Pennsylvania's Right-to-Know Law.

Continue reading

January 19, 2015 in Cognitive Impairment, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Sunday, January 18, 2015

Florida Supreme Court Advises on "Medicaid Planning" by Nonlawyers as "Unlicensed Practice of Law'

Following extensive hearings and related proceedings, including revision of an earlier proposed advisory opinion by the Florida Bar's Standing Committee, the Florida Supreme Court issued a per curiam opinion on January 15, 2015, addressing certain Medicaid planning activities, concluding that when performed by nonlawyers, they constitute the "unlicensed practice of law" (UPL), thereby leading to potential sanctions. Florida Supreme Court

The ruling focuses on actions by nonlawyers who assist with one or more of the following activities leading up to an application for Medicaid: (1) drafting of personal service contracts, (2) preparation and execution of Qualified Income Trusts; or (3) rendering legal advice on implementation of Florida law to obtain Medicaid benefits. The Court expressly distinguished the "preparation of the application for Medicaid benefits" as being outside of its opinion, pointing to federal law as authorizing nonlawyer assistance in the application process. 

The Elder Law Section of the Florida Bar was the petitioner seeking the advisory ruling.

In the detailed conclusion, the "harm and potential harm" from "unregulated" nonlawyers selling trust packages was outlined:

Continue reading

January 18, 2015 in Consumer Information, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Medicaid, State Cases | Permalink | Comments (1) | TrackBack (0)

Wednesday, January 14, 2015

Should Residents of "Personal Care" Homes Have Rights to Appeal an Involuntary Discharge?

A 90-year-old resident apparently wanted "out" of her personal care home in Pennsylvania -- but being kicked out probably wasn't the outcome her family wanted to see for their restless matriarch.  The personal care home issued a discharge notice on safety grounds, due to her "continued exit-seeking from the building." 

On January 9, 2015, the Commonwealth Court of Pennsylvania, an intermediate court, ruled that a core right recognized in state and federal law for residents of "long-term care nursing facilities" -- the right to seek third-party review when the resident or family disagree with a facility's involuntary discharge or transfer decision -- does not apply to "personal care homes" under the state licensing and regulatory system.  See Bouman v. Department of Public Welfare, Case No. 1262 C.D. 2014, decided November 14, 2014. 

Perhaps a new facility was the best decision, but at age 90, the woman's options for settling into a new place may be very limited.  The short opinion does not reveal whether other approaches, including behavioral "distraction" techniques that often are effective for those with dementia, were explored.  And without an appeal right, families may have no effective way of advocating for those approaches.

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January 14, 2015 in Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, January 12, 2015

"Broad POA Form" + Theft by Agent = Potential Liability for Lawyer? Maybe...

We have written often recently (see here and here) about problems with Powers of Attorney (POAs), and a pending case in Minnesota appears at first to be another sad tale of an agent's alleged self-dealing.  The Minnesota Court of Appeals set up the fact pattern as follows:

"The attorney is asked to draft a power of attorney for his elderly client.  The document is drafted by a secretary.  The lawyer never meets the client.  Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client.  The document allows the attorney-in-fact to transfer all of the client's assets to himself.  Days after the [elderly uncle] signs the document, that is precisely what happens." 

The nephew used the POA to drain the uncle's accounts of more than $227,000.

Was the nephew liable for conversion?  By the time that question was answered by the courts in the affirmative, the nephew was in bankruptcy -- and the money was apparently gone. 

The uncle's estate looked for deeper pockets, and focused on the law firm that provided the broadly worded POA "form."  The Minnesota Court of Appeal's split decision -- focusing on whether summary judgment for the defendant law firm was proper -- outlines several points that should be considered by any law firm that has drafted a POA, including whether such "forms" should ever be provided to individuals without accompanying legal advice.

Continue reading

January 12, 2015 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 6, 2015

N.M. Court of Appeals Rejects CCRC's Constitution-Based Claim for Charitable Property Tax Exemption

The New Mexico Court of Appeals recently rejected the claim by El Castillo, a Continuing Care Retirement Community (CCRC), for charitable property tax exemptions. I was particularly interested in this ruling, as I have visited the campus several times over the years, and have come to know many residents, who are some of the most active, socially aware seniors I've encountered. Just trying to keep up with 78-year old friends who are walking, walking, walking (at 7,000 feet) to their meetings can be a challenge.  The campus is very pleasant, quite modestly appointed, and fairly compact -- but perhaps most important of all, it has a terrific location.  I suspect that is a large part of the reason it is on the tax assessor's radar. IMAG0464-1_resizedThe campus is just a few blocks from the heart of beautiful Santa Fe and steps away from Canyon Road's art galleries. 

El Castillo has operated as a CCRC since 1971, with a Type A or "Life Care" structure, where residents age 65 and older pay non-refundable entrance fees, plus monthly service fees, with the expectation that all needs, whether in so-called "independent" apartments, assisted living units or nursing care, are provided on the same campus.  El Castillo is not associated with a particular faith nor with any fraternal organization, but it has operated since its inception under Section 501(c)(3) of the Internal Revenue Code, and thus is exempt from income taxes based on historical rulings that permit charitable tax exemptions for "homes for the aged."  However, as we have discussed in the past in this Blog, a state's standards for charitable property tax exemptions can be quite different than the IRS approach to charitable income tax exemptions. 

State and local governing bodies are constantly in search of tax revenues, and CCRC campuses, especially in urban locations, can be a tempting target.  Under New Mexico's state constitution, at Article VIII, Section 3, "all property used for educational or charitable purposes shall be exempt from taxation." Prior cases interpreting this provision did not require a facility to be operated "exclusively" for charitable purposes, but the landowner has the burden to show it operates "primarily and substantially for a charitable purpose."  

Key to the court's denial of the tax exemption was its observation that El Castillo appeared to operate as a self-sustaining unit funded entirely by fees paid by residents, with little or no "charitable" base.  The Court rejected El Castillo's argument that its charitable mission was to provide life-time care for residents who could (and sometimes do) become personally unable to pay, and that such a mission was only possible through "subsidizing" such residents by, in essence, pooling the fees paid by all residents. As demonstrated by contrasting rulings on property tax exemptions in other states, the financial analysis necessary to support a charitable use property tax exemption may require detailed analysis and advanced planning.  There is a fine line for any nonprofit to balance costs, sources of revenues and the goal of sustainability. In some instances, I have seen denial of property tax exemptions be the final straw for some nonprofit operators, especially those struggling with rising costs or occupancy rates after the 2008 financial downturn.

In New Mexico, there is both a constitutional basis for seeking a property tax exemption and a statutory basis.  The ruling on El Castillo -- which by the way, when translated from Spanish, means "The Castle" (a bit of irony perhaps, given the court's seeming hostility towards the exemption claim, pointing to the lack of "indigent" residents) -- was based only on the state constitution.  It appears the tax assessor actually failed to perfect his attempt to appeal a separate portion of the lower court ruling that had granted El Castillo the right to charitable tax exemptions on statutory grounds. Thus, it would appear that El Castillo would not immediately feel the effects of the Court's ruling, at least not for the specific tax years at issue in the multi-year litigation.   In a footnote, the Court of Appeals judges acknowedged that their decision on El Castillo creates a "dfferent result" than the same court's 2013 ruling on charitable property tax exemptions for a different life-care community, La Vida Llena, in Albuquerque, N.M.  The Court distinguished the La Vida Llena ruling as based only on statutory grounds.

For the complete ruling, including a complex jurisdictional issue, see El Castillo Retirement Residences v. Martinez, Case No. 31, 704, decided December 17, 2014.

January 6, 2015 in Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2014

Why an Experienced Elder Law Attorney Can Make a Difference...

On November 14, 2014, the Ohio Court of Appeals affirmed a lower court's decision in a deceptively simple contract dispute.  The question was whether a son, who was his mother's agent under a power of attorney, could be held personally liable for $8,700 incurred by his mother in nursing home costs.  The ruling in Andover Village Retirement Community v. Cole confirmed the son's contractual liability.

When I first read about the case, I thought I would find another example of the often confusing use of "responsible party" labels for agents in a nursing home admission agreement, a topic I've written about at length before.  However, the Ohio case was a new spin on that troublesome topic.  According to the opinion, Andover Village actually presented two separate documents to the son at the time of his mother's admission.  One document was an admission agreement that the son signed, pledging:

“When Resident's Responsible Person signs this Agreement on behalf of Resident, Resident's Responsible Person is responsible for payment to [Andover] to the extent Resident's Responsible Person has access and control of Resident's income and/or resources. By signing this Agreement the Resident's Responsible Person does not incur personal financial liability.”

The second document, titled "Voluntary Assumption of Personal Responsibility," was also signed by the son, but this time it stated, “I, Richard Cole, voluntarily assume personal financial responsibility for the care of Resident in the preceding Agreement.”

The court viewed the second document as the son's personal guarantee, and it was this document that triggered the court to find the son personally liable for his "voluntary" assumption of the obligation to pay costs not covered by Medicare or Medicaid.

The Ohio court leaves me with another question, not directly addressed in the decision.  Did the son really make a knowing and voluntary decision to assume personal liability for costs, especially costs that can break most individual's piggy banks?  Or, did the son sign a stack of papers he was told were routine and necessary for his mother to be admitted?  Admissions to nursing homes are often made when everyone, the resident and the family members, is under stress.

At a minimum, I would like to think that a family's consultation with an experienced elder law attorney at the time of admission would have made a difference. 

For facilities that are Medicare or Medicaid eligible -- and that is most nursing homes -- key federal laws, set forth at 42 U.S.C. §§ 1395i-3(c)(5)(A)(ii), 1396r(c)(5)(A)(ii) provide: “With respect to admissions practices, a skilled nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility.” 

I expect that an experienced elder law attorney would be familiar with this restriction on "mandatory" guarantees and would help the son see that for the nursing home to be compliant with federal law, any guarantee must be truly voluntary.  Advice from an experienced elder law attorney would help to guard against the not-so-voluntary signing of a stack of papers that are presented as "necessary" to admit the resident.  Perhaps a facility would refuse to admit the mother unless the son signs the "voluntary" agreement, but if that happens, it would be clear that the facility is violating the intention of federal law to protect individuals -- and families -- from waiving certain rights as a condition of admission or continued residence.

With that experienced lawyer's advice, a son could make a knowing and intentional decision to serve as his mother's contractual guarantor, and thus would be alert in advance to the ways that even small gaps can occur that are not covered by Medicare, Medicaid or private insurance. (Those small gaps can add up!)  Alternatively, if the son is not willing or able to serve as his parent's guarantor, another facility might be the better choice. 

In law school classes about elder law, we do teach Medicaid planning approaches, but frankly, that is usually a small part of any course.  The majority of our time is spent on the abundant ways that individuals and families can be helped by an attorney who understands the full panoply of rights and obligations that attend growing older in the U.S. and beyond. 

Hat tips to Pennsylvania attorney Jeffrey Marshall and Florida attorney Joseph Karp for alerts to the Ohio case.  

December 31, 2014 in Consumer Information, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases | Permalink | Comments (0) | TrackBack (0)

Monday, December 29, 2014

College Broadcast Student's Media Project Focuses on Filial Laws

Christopher Robb is in his final year at Westminster College in Pennsylvania and for his senior Media project he tackled "filial laws."  His impressive work included researching the history of such laws and studying recent court cases in Pennsylvania.  He interviewed and filmed a host of individuals from across the state who have experience with recent trends in use of filial support laws by nursing homes to seek payment from adult children for bills not satisfied by the resident's resources, insurance or Medicaid.  Chris Robb's resulting 15 minute video is titled, "Am I My Mother's Keeper?"  Thank you for sharing it with the Elder Law Prof Blog!

 

December 29, 2014 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (1) | TrackBack (0)

Monday, December 22, 2014

The Need for Granny Pads vs. "Parochial" Land Use Concerns

The amazing things you find when you start cleaning your office!  Here's a find.  Notre Dame Law Professors Margaret Brinig and Nichole Stelle Garnett wrote a great piece for The Urban Lawyer on what are sometimes called "granny pads," or more formally, "accessory dwelling units."  The authors track reform measures enacted in at least 12 states that either enable or mandate authority for such units, thus preventing local building or zoning limitations from restricting landowners to "one unit" per lot.  Additional reforms have occured at some municipal levels.  They point to experiences in California as a cautionary tale, however, suggesting that "local parochialism remains alive and well in American zoning codes, often buried in regulatory details that escape the attention of advocates and academics alike."

Here's a link to the full article, "A Room of One's Own? Accessory Dwelling Unit Reforms and Local Parochialism."    I'm embarrassed to admit this particular journal issue was on the 2013 level of my cleaning efforts.  Who knows what other gems may be hiding!

December 22, 2014 in Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, December 13, 2014

Los Angeles Public Radio Affilliate Continues Discussion on Capacity and Consent

AirTalk, a program aired daily by Public Radio affilliate KPCC in Southern California, hosted a discussion about the issues identified in news articles about the Iowa criminal case, where a husband faces "statutory rape" charges for having sexual relations with his wife after she was diagnosed with advanced dementia and began residing in a nursing home.

Here's the link to a podcast of the December 12, 2014 segment.

December 13, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Another Filial Friday: Rest Haven York v. Deitz

"Nonprecedential decisions" sometimes make me a little crazy.  Talk about them? Ignore them?  What if that's where all the action is happening on a tough topic? 

This time I think it is important to report a nonprecedential decision, one of the few to emerge from the appellate courts in Pennsylvania in recent years where sons or daughters are not held liable under Pennsylvania's filial support law, and thus were not required to pay for the parent's nursing home care.

In the case of Rest Haven York v. Deitz, Case No. 426 MDA 2014, the Pennsylvania Superior Court issued a nonprecedential memorandum ruling on August 22, 2014.   Mom resided in the plaintiff-nursing home for about two and a half years, and when she died there was an alleged unpaid bill of approximately $55k.  No details are provided in the opinion about why that debt accrued or whether Medicaid was used for any payments.  The amount is large enough to suggest something went wrong somewhere on the payment side of the ledger, but it also is not large enough to suggest that no payments were made.

The facility sued the resident's daughter, who was alleged to have "signed the admitting papers as agent under a power of attorney" executed by her mother.  The complaint, filed three months after the mother's death, alleged breach of contract, implied contract, unjust enrichment, fraud, "and breach of duty to support" under Pennsylvania's filial support law, 23 Pa.C.S.A. Section 4603.

Daughter was granted summary judgment by the trial court, dismissing the entire suit.  The only issue on appeal was whether the nursing home had "failed to provide evidence that could have allowed the trial court to declare [the mother] indigent." Indigency, an undefined term in the statute, is one element of Pennsylvania's filial support law. 

The appellate court rejected the daughter's argument that indigency must somehow be declared or established by a judgment before a family member's support obligation can be triggered.  However, the court also concluded that attaching a copy of the contract signed by the daughter, as agent for her mother, and attaching a copy of "overdue" charges on the mother's account did not suffice. Interestingly, the court then went on to offer a bit of a lesson on how nursing homes "could" prove their case -- so, a nonprecedential opinion with a moral?

"To present competent evidence to prove indigence, Rest Haven should have provided a bank statement or similar documentation attesting to [the mother's] financial condition." 

In giving this lesson, the court cited two very precedential cases decided by the same court, Healthcare & Retirement Corp. of America v. Pittas (2012) and Presbyterian Medical Center v. Budd (2003).

As I often say to family members or lawyers who are startled to read about filial support law obligations, Pennsylvania appellate courts take this law very seriously when it comes to unpaid nursing homes.  There are some defense strategies available, but a successful defense is not easy.    

December 12, 2014 in Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, December 11, 2014

When Does Dementia Mean You No Longer Have the Right to Say Yes to Sexual Activity?

In August, I reported on criminal charges filed that month in Iowa, charging a husband with sexual abuse of his wife who was living in a nursing home. 

As a result of that post, I was invited by a reporter, who was working on an extended analysis of the case, to review certain information and records emerging from the case. Much of my own research is closely focused on issues both of capacity and protection.

The more one reads about the Iowa case, the sadder it seems.  Even though at first it seemed the husband, a state legislator, might be expected to have sophisticated legal knowledge of the implications of what it might mean for his wife to be diagnosed with dementia, it became pretty clear -- at least to me, reading from afar -- that the husband is a fairly simple guy: A farmer, high school education, part-time legislator who liked pig roasts and parades, and someone who cared deeply for his second wife, trying as hard as possible to see her as "just a little" impaired. 

I suspect that for many of us who have experiences with a loved one with dementia, there is a phase of denial, not just about the fact of dementia, but about the level of dementia. I remember one instance where a client always had her husband sign their joint tax returns, because even with Alzheimer's, he was "able" to sign his name clearly.   

Reading the statute used to charge the Iowa husband also gave me pause. Iowa Code Section 709 was the basis of the sexual abuse charges.  Sexual abuse in the third degree under Section 709.4 could be charged where a sex act "is done by force or against the will of the other person." That provision did not seem to apply.  Charges could also be brought where the act is between persons who are not cohabiting as husband and wife, "if any of the following" is true: "The other person is suffering from a mental defect or incapacity which precludes giving consent."

Section 709.1A of the Act defines "incapacitation" to include "mentally incapacitated" or "physically incapacitated" and neither quite seemed to apply.  Under Iowa law, "mentally incapacitated" means that a person is "temporarily incapable of apprising or controlling the person's own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance."  And "physically incapacitated" means that a person has a bodily impairment or handicap that substantially limits the person's ability to resist or flee."

So, how was the husband charged?  He was charged under Section 709.4 (2)(a) on the grounds that his wife, with whom he was not "cohabiting," suffered from a "mental defect" that precluded giving consent.

So that makes the "elder  law" issue fairly stark: Has his wife's diagnosis of dementia, especially advanced dementia, prevented her from giving legally effective "consent?"

Continue reading

December 11, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Saturday, November 29, 2014

Oregon Court Invalidates State's Attempt to Expand Medicaid Estate Recovery

On November 26, 2014, in Nay v. Department of Human Services, the Oregon Court of Appeals invalidated a 2008 attempt by the state to expand Medicaid estate recovery rules to reach assets conveyed prior to death by the Medicaid recipient to his or her spouse. 

The court's ruling analyzes the portion of federal statutory law that permits, but does not require, states to expand Medicaid estate recovery programs to cover "any other real or personal property and other assets in which the [deceased] individual had any legal title or interest at the time of death... including such assets conveyed to a survivor, heir, or assign of the deceased individual through joint tenancy, tenancy in common, survivorship, life estate, living trust or other arrangement."  Analysis of this language, which was mirrored by Oregon statutory law, leads the court to conclude that some ownership interest at time death of the Medicaid recipient must be present to make the asset a valid target of Medicaid estate recovery:

"Therefore, we conclude that 'other arrangement' in the context of the definition of “estate” means that assets transferred from the deceased 'individual'—the Medicaid recipient—by operation of law on account of or occurring at the recipient's death are included in that definition. Thus, the 'including' clause in the federal permissive definition of 'estate' incorporates nonprobate assets that are transferred from the Medicaid recipient to a third party by operation of law or other mechanism, but in which the deceased Medicaid recipient retained legal title or 'any' interest at the time of his or her death."
The appellate court then analyzes property law principles and elective share rules in Oregon, concluding that the state rulemaking attempt to reach pre-death interspousal transfers is not within the scope of the federal (or state) authorization:
 
"By including the 'interspousal transfer' text in the pool of assets from which the state can recover from the surviving spouse's estate, the rule includes assets that necessarily were transferred before the recipient's death. Because we have concluded that such predeath transfers are antithetical to the definition of estate as provided by federal and state law (requiring that the recipient have an interest in the property at the time of his or her death), we conclude that DHS's amendments of OAR 461–135–0835(1)(e)(B)(iii) relating to interspousal transfers exceeded its statutory authority granted by ORS 416.350 and 42 USC section 1396p, and we hold those provisions invalid."
The petitioner in this case, Tim Nay, is a Portland, Oregon attorney and former president of NAELA. By ruling in favor of the petitioner on the scope of authority for rule making issue, the appellate court found it unnecessary to address the petitioner's alternative argument on constitutionality of the rule

November 29, 2014 in Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Cases | Permalink | Comments (0) | TrackBack (0)

Friday, November 28, 2014

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

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

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

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

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

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

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

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

Monday, November 24, 2014

Proposed Changes to Attorney Disciplinary Rules Follow Recent Theft Reports

Several high profile incidents, such as those reported here in our Blog and here by the Philadelphia Inquirer, involving attorneys disciplined or convicted of theft of client funds, have triggered proposed changes in Pennsylvania's Rules of Professional Conduct for attorneys. The rule changes proposed by the Pennsylvania Supreme Court's Disciplinary Board include:

  • imposing restrictions on an attorney's brokering or offering of "investment products" connected to that lawyer's provision of legal services;
  • clarifying the type of financial records that attorneys would be required to maintain and report, regarding their handling of client funds and fiduciary accounts;
  • clarifying the obligation of attorneys to cooperate with investigations in a timely fashion;
  • clarifying the obligation of suspended, disbarred, or "inactive" attorneys to cease operations and to notify clients "promptly" of the change in their professional status. 

The Disciplinary Board called for comments on the proposed rule changes, noting that although individual claims against the Pennsylvania Lawyers Fund for Client Security are confidential, "Fund personnel can attest that from time to time, the  number of claims filed against a single attorney will be in double digits and the total compensable loss will amount to millions of dollars."  The comment window closed on November 3. 2014.

In recommending changes, the Disciplinary Board noted common threads running through many of the cases, including:

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November 24, 2014 in Crimes, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Thursday, November 13, 2014

Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"

Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA).  The POA named him as agent for his 86 year-old aunt.  At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:

"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."

In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own.  In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA  to make the transfers in question was a crime.  The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."

An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA. 

When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs.  He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional." 

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November 13, 2014 in Crimes, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2014

Debating Fiduciary Duties and Resident Rights in Continuing Care Communities

Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge.  The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."  NaCCRA LeadingAge Meeting October 2014

Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding.  Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating.  The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident.  He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees.Jack Cumming October 2014  I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.  Dan Seeger October 2014

In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country.  Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve.  For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.

Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market.  Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH.  CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.  

As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer. 

Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models.  Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.       

October 27, 2014 in Current Affairs, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 16, 2014

PA Attorney Disbarred After Ten Years of Involvement In "Living Trust Scams" Targeting Seniors

Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."

Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred.  This particular disciplinary action has been a lo-o-o-o-ng-time coming.

Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities.  Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling.  He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of  Voluntary Compliance. 

The conduct, however, apparently did not stop.  An undercover investigator was used to document continued problems.   In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies  in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."

In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.

September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)