Friday, January 13, 2017
The plight of 108-year-old Ohio resident Carrie Rausch, facing the prospect of losing her spot in an assisted living community because she's run out of money, is generating a lot of attention in the media, including People magazine. Some states, such as New Jersey, have expanded the options for public assistance in senior living -- beyond nursing homes -- to permit eligible individuals to use Medicaid for residential care. Assisted living is usually much less expensive than a nursing home; but the pool of individuals who would might opt for assisted living rather than the "dreaded" nursing home is also larger. Ohio, along with many states, hasn't gone the AL route:
If Rausch can’t raise the money needed, she’ll have to leave what has been her home for the past three years and move into a nursing home that accepts Medicaid.
[Daughter] Hatfield worries about the toll the move would take on her mom, who is more lively and active than most people 10 or even 20 years her junior. . . . “We need a miracle,” she says.
Ms Rausch's adult daughter -- herself in her late 60s -- has turned to GoFundMe to attempt to raise the $40k needed for a year of continued residence, and as of the date of this Blog post, more than 700 donors have responded.
At a deeper level, however, this story reveals important questions about public funding for long-term care on a state-by-state basis. This funding issue is repeating itself throughout the country for seniors much younger than the frugal and relatively healthy Carrie Rausch. On a national basis, GoFundMe "miracles" seem an impractical solution.
Thursday, January 12, 2017
Should Home Care Providers Be Permitted to Seek Broad Waivers of Liability from Elderly Clients? (And if so, are there clear standards for a knowing waiver?}
Recently an attorney wrote to me about an elderly client who had been victimized by a home care worker hired through an agency; the allegations included physical abuse, intimidation, identity theft, failure to provide care, theft of personal possessions and false imprisonment. Not too surprisingly, the specific worker was long gone once the harm was discovered by non-resident family members. Significantly, the family also learned that the mother had signed the agency's standard contract withtwo pages of single-spaced type that covered everything from hours to wages, and which included a numbered paragraph purporting to grant a broad waiver of the agency's liability for actions of the individuals sent to the home of the elderly client. Key language provided:
"CLIENT and/or CLIENT's agent/responsible party agrees on behalf of CLIENT, CLIENT's agent/responsible party, beneficiaries, heirs, and/or family/household members to release [agency], owner, officers, directors, agents and employees, office, office directors, office employees, and Caregiver from any and all liability, potential or real, for any injury, claim, damage, or loss, including attorney's fees, incurred in connection with the performance of this agreement and all services, incurred in connection with the performance of this agreement and all services performed by Caregiver for the CLIENT, including but no limited to assisting CLIENT with his/her medications and providing transportation to Client or any member of CLIENT's family/household, except for gross negligence...."
The attorney asked about any state regulatory language that would limit liability waivers or require, at a minimum, bold faced type or large type for such attempted waivers when used with elderly or disabled clients. Those receiving home care may be uniquely vulnerable to unwitnessed abuse, and also less likely to report abuse because of the fear of the "worse" alternative, a nursing home. In the state in question, regulations require certain disclosures to be made in a form "easily read and understood," but the regulations don't specifically address (nor prohibit) waivers of the company's liability. See e.g. PA Code Section 611.57.
What about in your state? Is there relevant regulation? Alternatively, is there a "best" (or at least better) practice in the home care industry when seeking contractual waivers of liability? The issue reminds me of an article written in the mid-1990s by Charlie Sabbatino discussing the one-sided nature of nursing home contracts in the absence of careful regulation protecting patient rights. He wrote:
Broadly worded waivers of liability for personal injury are likely to be unenforceable and void as a matter of public policy in most states. Residents are most commonly asked to consent to absolute waivers for injury caused by other patients or by independent contractors in the facility, or for injury occurring outside of the facility, such as on a field trip. Federal and state nursing home laws have not squarely addressed personal injury waivers. even though the whole thrust of the regulatory framework is expressly intended to set standards for the protection of residents' health, safety, and welfare.
And the subtitle of the article on Nursing Home Contracts is "Undermining Rights the Older Fashioned Way."
January 12, 2017 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, January 10, 2017
In late December 2016, the Oregon Supreme Court ruled that state efforts to use Medicaid Estate Recovery regulations to reach assets transferred between spouses prior to application were improper. In Nay v. Department of Human Services, __ P.3d ___, 360 Or. 668, 2016 WL 7321752, (Dec. 15, 2016), the Supreme Court affirmed in part and vacated in part the ruling of the state's intermediate appellate court (discussed here in our Blog in 2014). The high court concluded:
Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department's statutory authority under ORS 183.400(4)(b). The Court of Appeals correctly held the rule amendments to be invalid.
Our thanks to Elder Law Attorney Tim Nay for keeping us up to date on this case. His firm's Blog further reports on the effects of the final ruling in Oregon:
"Estate recovery claims that were held pending the outcome of the Nay case can now be finalized, denying the claim to the extent it seeks recovery against assets that the Medicaid recipient did not have a legal ownership interest in at the time of death. Estate recovery claims that were settled during the pendency of Nay contained a provision that the settlement agreement was binding on all parties to the agreement no matter the outcome in Nay and thus cannot be revisited."
January 10, 2017 in Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, December 26, 2016
Attorney Tim Nay ( NAELA's first president by the way), recently posted on listservs about the Oregon Supreme Court's opinion on the state Medicaid agency's rules regarding estate recovery. The Oregon Supreme Court, in Nay v. Department of Human Services, affirmed the court of appeals decision that the administrative rules were invalid:
In 2008, the department amended its administrative rules regarding the scope of that recovery. The amended rules allow the department to recover the payments from assets that the recipient had transferred to a spouse up to five years before a person applies for Medicaid. Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals. The Court of Appeals agreed with petitioner that the amendments were invalid ... and the department sought review. As we will explain, we conclude that the rule amendments are invalid under ORS 183.400(4)(b) because they exceed the department’s statutory authority. Accordingly, we affirm the Court of Appeals. (citations omitted).
After reviewing state family law and probate law (elective share) and the arguments advanced by the Department of Human Services, the Oregon Supreme Court concluded
The department promulgated rule amendments that allow it to obtain estate recovery from transfers made to a spouse within the five years before a person applies for Medicaid. Our standard for judicial review is whether the department exceeded its statutory authority ..., and more specifically whether the rule amendments depart from a legal standard expressed or implied in the particular law being administered.... Because “estate” is defined to include any property interest that a Medicaid recipient held at the time of death, the department asserted that the Medicaid recipient had a property interest that would reach those transfers. In doing so, it relied on four sources: the presumption of common ownership in a marital dissolution, the right of a spouse to claim an elective share under probate law, the ability to avoid a transfer made without adequate consideration, and the ability to avoid a transfer made with intent to hinder or prevent estate recovery. In all instances, the rule amendments departed from the legal standards expressed or implied in those sources of law. Accordingly, the rule amendments exceeded the department’s statutory authority..... The Court of Appeals correctly held the rule amendments to be invalid. (citations omitted).
The opinion is available here.
Congrats Tim and thanks for letting us know!
Sunday, December 25, 2016
The National Center for State Courts, in conjunction with the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) released its Strategic Action Plan 2016 Adult Guardianship Initiative which was adopted on December 1, 2016. According to the report "[t]he mission of the Adult Guardianship Initiative is to improve state court responses to guardianship and conservatorship matters. This Initiative encourages the use of less restrictive alternatives, the prioritization of the protected person’s individual rights, active court monitoring and oversight, the modernization of processes, and the restoration of rights."
The initiative has 4 goals:
Develop and maintain a partnership of key stakeholders ...
Prioritize the protection and enhancement of individual rights ...
Promote modernization and transparency in the guardianship process ...
Enhance guardianship/conservatorship court processes and oversight ...
The initiative also lists several concept projects: (1) Funding and Implementing a Guardianship Court Improvement Program; (2) Conservatorship/Guardianship Accountability Project: Building a National Resource that uses Technology and Analytics to Modernize the Process; (3) National Summit for Courts on Improving Adult Guardianship Practices; (4) Establishing Judicial Response Protocols to Address Guardianship Abuse, Neglect and Exploitation; (5)Developing a Mentor Guardianship Court Program; and (6) Building a Research Portfolio and Developing Court Performance Management Systems.
Visit the Center for Elders and the Courts for more information.
December 25, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, October 21, 2016
LeadingAge, the trade association that represents nonprofit providers of senior services, begins its annual meeting at the end of October. This year's theme is "Be the Difference," a call for changing the conversation about aging. I won't be able to attend this year and I'm sorry that is true, as I am always impressed with the line-up of topics and the window the conference provides for academics into industry perspectives on common concerns. For example, this year's line up of workshops and topics includes:
- General sessions featuring Pulitzer Prize winning journalist Charles Duhigg on the "The Science of Productivity," 2013 MacArthur Fellow and psychologist Angela Duckworth on the the importance of grit and perservance for successful leadership, and famed neurosurgeon and speaker Sanjay Gupta on "Medicine and the Media."
- Hundreds of sessions, organized by "interest groups":
October 21, 2016 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (2)
Thursday, October 20, 2016
Generally speaking, I'm not a fan of mandatory retirement based on age alone, whether for judges or other professions. In a perfect world, merit-based criteria should be the issue, not age. At the same time, as a full-time practicing lawyer before becoming a full-time academic, I was all too familiar with judges who stayed on the court too long. Indeed, I had the challenging (okay, make that very challenging) experience of trying to help my own father, who as a federal judge had a lifetime appointment, make the decision to retire. The whole family was involved, but it needed to happen.
During the primary elections in Pennsylvania during the spring, there was an initiative that appeared on the ballot in my voting precinct about mandatory retirement for judges. The spring initiative read:
Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?
The language, I thought, was clear, as it was a proposal to increase the mandatory retirement age from 70 to 75 for members of the Pennsylvania judiciary. I voted yes, knowing that many of the most capable judges were still in their prime at 70+
However, a behind-the-scenes compromise, involving partisan politics in the state legislature, was in the works on the language, and as it turned out our primary votes simply were not counted on the above initiative. Instead, in the upcoming general election the following initiative will appear:
Shall the Pennsylvania Constitution be amended to require the justices on the Supreme Court, judges, and magisterial district judges be retired on the last day of the calendar in which they attain the age of 75 years?
Does this replacement language fairly explain the choices to the average voter? I'm not the only one who thought the new language was less than candid. I was impressed by the stand taken by former Pennsylvania Supreme Court Justice Ronald Castille, who was in favor of the higher age and reportedly had not wanted to retire at 70, but who didn't like the hide-the-ball tactics. He joined others and challenged the language. His word for the tactic? "Deceitful."
Who had the final say on which language would be used? Ironically, the Pennsylvania Supreme Court. In its September ruling, the Court was split 3 to 3 on the issue, which allowed the "new" language to stand.
Wednesday, October 19, 2016
University of Illinois Law Professor Richard Kaplan has a new article available, entitled Religion and Advance Medical Directives: Formulation and Enforcement Implications.
From the abstract:
This Article examines the role of religion in the creation and enforcement of advance medical directives. It begins by setting out the principal similarities and differences between the two types of such directives—namely, living wills and health care proxies (or powers of attorney). It then considers the formulation of religiously oriented advance directives and their incorporation of religious doctrine and imperatives. The Article then addresses the impact that the religious views of an individual patient’s treating physician might have on such directives. Finally, the Article analyzes religiously based challenges to the enforcement of advance medical directives, paying particular attention to the Terri Schiavo case and its continuing significance.
This is an opportunity for us to remind readers to make sure you alert us to your forthcoming articles that touch on elder law topics. Thank you, Dick.
Monday, October 10, 2016
In April 2015, we followed the Iowa state criminal trial of a former state legislator for allegedly having sexual relations with his wife in her nursing home after she was diagnosed with Alzheimer's Disease. See here, here and here, for example. The charge of "sexual assault" was based on an Iowa statute that criminalized a sexual act "between persons who are not at the time cohabiting as husband and wife" if "the other person is suffering from a mental defect or incapacity which precludes giving consent." See Iowa Criminal Code Sections 709.1, 709.1A, and 709.4(2)(a). After a several day high-profile trial -- where emotions were running high on all sides with family members, witnesses and attorneys -- the jury acquitted Henry Rayhons, then age 79. The prosecutor took the position that any theory the wife "consented" to sexual relations was completely irrelevant as a matter of law, because of her debilitating mental condition.
The legal proceedings did not stop with the criminal case. A year later, Henry Rayhons filed a civil suit for damages, alleging various state law claims such as (1) defamation, (2) intentional infliction of emotional distress, (3) malicious prosecution, (4) negligent infliction of emotional distress, (5) negligence, and (6) loss of consortium against various individual defendants. Defendants named on certain of the state law counts included two adult daughters of his deceased wife and his wife's treating physician at the nursing home. Separate counts named the nursing home itself on state law claims of vicarious liability. Count IX of the petition alleged a claim under the federal civil rights statute, 42 U.S.C. Section 1983, against the state prosecutor in the criminal case. In July 2016, the prosecutor, Susan Krisko, removed the case to federal court and filed a motion for summary judgment.
October 10, 2016 in Advance Directives/End-of-Life, Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Monday, October 3, 2016
In the Matter of Jane Doe, a case pending in New York state courts for several years, involves tragic facts. A 37-year old woman experienced cardiac arrest in 2003 following complications during delivery of her third child. With a cascading series of events, "Jane Doe" suffered anoxic brain damage and spastic quadriparesis, and became dependent on a respirator and full time care in a nursing home's ventilator unit. Her husband, John D., was initially appointed as her personal needs guardian, while a separate person, an attorney, was appointed property management guardian. In 2012, John D initiated measures to remove his wife's life support; litigation ensued when other family members opposed the proposed withdrawal. After more than a year of proceedings, John D. stepped down as special needs guardian and in 2012, the court appointed one attorney as legal counsel for Jane Doe, and a separate attorney as the new special needs guardian with authority under New York law to determine the patient's health care, including any decision to withdraw life supports.
In 2016, a New York Court held extensive hearings on the surrogate decision of the special needs guardian to withdraw life support for Jane Doe. The court heard testimony from medical professionals, friends and relatives of Jane Doe, including those who recounted conversations with Jane, offered to show that she would not want life sustaining measures to be withdrawn. The testimony, summarized in the opinion, is wrenching. Ultimately, on August 19, 2016, the court issued a detailed ruling, finding that the decision of the special guardian to withdraw life support was supported by the evidence. The court denied the petition of family members opposing termination of life support but also stayed its final order for 60 days to permit further appeals.
On one level, this is case is another window into the use of courts for end-of-life decision-making. But the case also highlights the important roles potentially played by lawyers for the incapacitated person, including as appointed legal counsel for the incapacitated person and separately, as the surrogate decision maker. The surrogate's experience as an elder law attorney was viewed by the court as important to her credentials.
Here are the court's reasons for accepting the surrogate's decision:
Friday, September 30, 2016
Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim
I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania. A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.
In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support" law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied. N.J. filial support obligations are more limited than those affecting families under Pennsylvania law. Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents. See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question. The disabled son was 29.
The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language. At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.
Wednesday, September 28, 2016
I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?" It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client. The "family" is generally not the answer to "who is your client?," even if you represent more than one family member. From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:
By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.
Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%.
The case was settled, and Silva’s staff deposited the check into her operating account. A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.
While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.
The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory. Different accounts for different clients. While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction. The $64,000 question just got a whole lot more expensive for that lawyer.
My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.
Sunday, September 11, 2016
Over the weekend, I caught the recently released movie, Hell or High Water. Both "contract law" and "elder law" figure into the plot. Warning: Spoilers ahead -- so don't keep reading if you don't want to know.
The timeless and yet still "modern" plot -- with sons trying to save the family homestead from the bank -- has a few good West Texas twists (although the movie was mostly filmed in my old stomping grounds of New Mexico). I enjoyed the play on words with the title of the movie from a legal perspective. The bank's "reverse mortgage" on the homestead has a payoff clause that bars any excuses for nonpayment, such as Acts of God or other hardships. In legal circles such clauses have are called "come hell or high water" terms, rejecting any "force majeur" excuses for late payments. So the brothers are up against the clock. Can they steal enough from the very bank conglomerate that made the loan in order for them to get the mortgage paid off by the deadline? Good character actors abound, including two waitresses who steal the scenes in small town diners and Jeff Bridges at the other end of a Texas journey he began 45 years ago with The Last Picture Show.
The reverse mortgage is the elder law part of the plot. The movie hints the aging mother was loaned just $25,000 on the homestead (where oil may be found) -- enough to be difficult to pay off (especially with taxes and fees), but not enough money to truly save her from her debts. While the plot stretches the realities of reverse mortgages, in truth such mortgages are typically very high cost loans, and are not easily refinanced.
Friday, September 9, 2016
When I was growing up in Arizona, my father and I spent a lot of time on the road, and we would often comment on the small white crosses found along the highways marking the locations of fatal car accidents. Perhaps this conversation was a bit morbid in retrospect, but the presence of the crosses made an impression on me, demonstrating just how significant a momentary lapse of awareness can be for drivers operating at high speeds. I'm not sure when those state-sponsored memorials ended, but you still sometimes see markers installed by families. They can vary from simple to elaborate. In the Southwest generally, they are sometimes known as "descansos," a Spanish word for "resting places," and there is a long tradition behind them.
More recently in Arizona, the tradition has been challenged, with state authorities aggressively removing the impromptu memorials as "safety hazards" in early 2016, citing long-standing laws prohibiting such markers. An Arizona newspaper chronicled the issues earlier in the year:
For the past 15 years, Pete Rios would say a special silent prayer as he drove past a large white cross that sat on top of a rocky hill just alongside the road on his way to work.
As a little boy, he said, he was told “that’s what you do to show respect” for the many memorial sites that line Arizona highways, marking the deaths of loved ones.
One in particular was special to the Pinal County supervisor.
It bore the initials of his sister, Carmen Rios, who had been killed near that spot by a drunken driver in 2000. It sat surrounded by a 3-foot angel, faded in color from years of sun beating down on it, and ceramic vases that held new flowers with every passing holiday and changing of seasons.
Last week, the memorial disappeared.
When dozens of crosses along Arizona highways disappeared suddenly, families protested. They countered the "safety" argument, pointing to the absence of any evidence that the small crosses caused drivers to stop or otherwise change their course of driving. The Arizona Department of Transportation offered "alternatives" as memorials, suggesting families could participate in Arizona's "adopt a highway" program.
The grassroots advocacy of families took hold, and recently the Arizona Department of Transportation announced a new policy:
Recognizing the need of families to grieve in different ways for those killed in crashes, the Arizona Department of Transportation has established a policy allowing memorial markers along state-maintained highways in a way that minimizes risks for motorists, families and ADOT personnel.
Developed with input from community members, the policy specifies a maximum size and establishes standards for materials and placement so markers present less chance of distracting passing drivers or damaging vehicles leaving the roadway....
- Size and materials: A marker may be up to 30 inches high and 18 inches wide, and the wood or plastic/composite material components used to create it may be up to 2 inches thick and 4 inches wide. It may include a plaque up to 4 inches by 4 inches and up to 1/16 of an inch thick. It may be anchored up to 12 inches in the ground, but not in concrete or metal footings.
- Placement: In consultation with ADOT officials, families will place markers as close as possible to the outer edge of the highway right of way. Markers may only be placed in front of developed property if the property owner gives written permission to the family.
It turns out that states across the nation have different laws and policies governing roadside memorials. And, I guess I'm not entirely surprised to discover law review articles on this very subject. Florida Coastal Associate Law Professor Amanda Reid has two very interesting pieces, including "Place, Meaning and the Visual Argument of the Roadside Cross," published in 2015 in the Savannah Law Review.
Monday, August 29, 2016
We often report on crimes against older adults on this blog, but last week an 80-year-old former University of Arizona professor pleaded guilty to theft of more than $80,000 from his employer. How did he accomplish that?
The animal sciences professor was in charge of the land-grant university's "Meat Store" in Tucson and was charged with diverting thousands of dollars in proceeds from sales of meat into his own bank accounts. John Marchello worked for U of A for more than 50 years, and retired just days before his indictment in 2015. Indeed, I attended U of A many moons ago, and as a former 4-Her who took a few Ag Sciences courses along the way, I probably even took a "meats lab" course from him.
Talk about alternative "long-term care" planning. Sadly, Marchello is scheduled to be sentenced in November and faces a potential sentence between one and three years for the Class 4 felony.
There is also a civil suit pending, alleging more than $200,000 in theft. For more, see Longtime UA Professor Pleads Guilty.
Tuesday, August 23, 2016
Philadelphia to Host the 27th Annual National Adult Protective Service Assoc Conference, August 29-31
Recently I received an email reminder from ElderLawGuy Jeff Marshall that Pennsylvania is hosting this year’s National Adult Protective Service Association (NAPSA) Conference from August 29 through 31 at the Loews Hotel in Philadelphia. The conference will feature many of the nation’s leading adult protective services professionals who will share their ideas, expertise and creative approaches, with workshop sessions for brainstorming application of new ideas. More details, including information about CLE credits, are available here. Immediately following the NAPSA conference, in the same Philadelphia location, is the 7th Annual Summit on Elder Financial Exploitation, on September 1.
These national meetings come at a time when elder abuse and elder justice have been the subject of growing attention in Pennsylvania, as well as around the nation. It seems fitting that Philadelphia is hosting the national meeting, as it follows a months-long Task Force analysis of the role of Pennsylvania court systems in helping to protect at-risk seniors or other vulnerable adults.
Tuesday, August 16, 2016
Last weekend, the Arizona Republic newspaper carried a Question and Answer column that caught my eye. The question began:
My grandmother lives in Scottsdale, and my wife and I live in Chicago. We only visit her two or three times a year. Although we thought my grandmother was still able to manage her financial affairs, she recently called us to say that she was being evicted from her Scottsdale home for nonpayment of HOA dues. My grandmother owns her $450,000 hoe free and clear....
HOA dues only totaled $700 originally. After the late charges, interest, and legal fees, however, there was almost $8,000 owed at the foreclosure sale two weeks ago.
How often do crises involving aging loved ones begin with the words "I thought she was doing well living alone until...?" Here the concerned grandson jumped into action and the consumer advisor suggested a range of options, including working with the "investor" to resolve the ownership and equity issues. For more you can read Grandmother Loses Home to HOA Fees on the PressReader service for the Arizona Republic, August 14, 2016.
Wednesday, July 20, 2016
I wanted to make sure you didn't miss these developments.
First, Colorado voters in November may see a ballot initiative on physician-aided dying. Proponents are collecting signatures according to an article in the Denver Post, Right-to-die initiative headed for Colorado’s November ballot. It's not a slam-dunk however. The article notes that there is opposition to the proponents efforts to place the initiative on the ballot. Proposed legislation failed previously. Stay tuned.
Second, in case you missed it, on June 30, 2016, the New Mexico Supreme Court issued its ruling in Morris v. Brandenburg, a physician-aided dying case that has been making its way through the appeals process. The court held "we decline to hold that there is an absolute and fundamental constitutional right to a physician’s aid in dying and conclude that Section 30-2-4 is not unconstitutional on its face or as applied to Petitioners in this case." The court relied heavily on the U.S. Supreme Court opinion in Washington v. Glucksberg and found no specific reasons under the NM Constitution to depart from that precedent since physician-aided dying is not a fundamental right. Here's an excerpt from the opinion:
New Mexico, like the rest of the nation, has historically sought to deter suicides and to punish those who assist with suicide, with limited exceptions in the HCDA and the Pain Relief Act. However, these exceptions occurred as a result of debates in the legislative and executive branches of government, and only because of carefully drafted definitions and safeguards, which incidentally are consistent with the safeguards urged by Petitioners. Numerous examples of such definitions and safeguards exist in the UHCDA. In addition to those previously identified in paragraph 35 of this opinion, the following reflect other safeguards relevant to our analysis... These and other provisions of the UHCDA further many of the government interests recognized by the Glucksberg Court as unquestionably legitimate, and which made Washington’s ban on physician aid in dying reasonably related to their promotion and protection…Indeed, if such exceptions and carve-outs to the historical national public policy of deterring suicide properly exist, they are certainly borne of the legislature and not the judiciary.
A summary of the opinion appeared in the July 13, 2016 eBulletin (full disclosure-I'm one of the editors).
Tuesday, July 5, 2016
Special and Supplemental Needs Trust To Be Highlighted At July 21-22 Elder Law Institute in Pennsylvania
In Pennsylvania each summer, one of the "must attend" events for elder law attorneys is the annual 2-day Elder Law Institute sponsored by the Pennsylvania Bar Institute. This year the program, in its 19th year, will take place on July 21-22. It's as much a brainstorming and strategic-thinking opportunity as it is a continuing legal education event. Every year a guest speaker highlights a "hot topic," and this year that speaker is Howard Krooks, CELA, CAP from Boca Raton, Florida. He will offer four sessions exploring Special Needs Trusts (SNTs), including an overview, drafting tips, funding rules and administration, including distributions and terminations.
Two of the most popular parts of the Institute occur at the beginning and the end, with Elder Law gurus Mariel Hazen and Rob Clofine kicking it off with their "Year in Review," covering the latest in cases, rule changes and pending developments on both a federal and state level. The solid informational bookend that closes the Institute is a candid Q & A session with officials from the Department of Human Services on how they look at legal issues affected by state Medicaid rules -- and this year that session is aptly titled "Dancing with the DHS Stars."
I admit I have missed this program -- but only twice -- and last year I felt the absence keenly, as I never quite felt "caught up" on the latest issues. So I'll be there, taking notes and even hosting a couple of sessions myself, one on the latest trends in senior housing including CCRCs, and a fun one with Dennis Pappas (and star "actor" Stan Vasiliadis) on ethics questions.
Here is a link to pricing and registration information. Just two weeks away!
July 5, 2016 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Tuesday, June 21, 2016
On June 15, I logged into the National Consumer Law Center's webinar on Financial Frauds and Scams Against Elders. It was very good. Both David Kirkman, who is with the Consumer Protection Division for North Carolina Department of Justice, and Naomi Karp, who is with the federal Consumer Financial Protection Bureau, had the latest information on scamming trends, enforcement issues, and best practices to avoid financial exploitation. Here were some of the "take away" messages I heard:
- "Age 78" -- why might that be important? Apparently many of the organized scammers, such as the off-shore sweepstakes and lottery scams, know that by the time the average consumer reaches the age 78, there a significant chance that the consumer will have cognitive changes that make him or her more susceptible to the scammer's "pitch." As David explained, based on 5 years of enforcement data from North Carolina, "mild cognitive impairment" creates the "happy hunting ground" for the scammer.
- "I make 'em feel like they are Somebody again." That's how one scammer explained and rationalized his approach to older adults. By offering them that chance to make "the deal," to invest in theoretically profitable ventures, to be engaged in important financial transactions, he's making them feel important once again. That "reaction" by the older consumer also complicates efforts to terminate the scamming relationship. David played a brief excerpt of an interview with an older woman, who once confronted with the reality of a so-called Jamaican sweepstakes lottery, seemed to make a firm promise "not to send any more money." Yet, three days later, she sent off another $800, and lost a total of some $92k to the scammers in two years.
- "Psychological reactives." That's what David described as a phenomenon that can occur where the victim of the scam continues to play into the scam because the scammer is offering the victim praise and validation, while a family member or law enforcement official trying to dissuade the victim from continuing with the scam makes him or her feel "at fault" or "foolish." An indirect, oblique approach may be necessary to help the victim understand. One strategy to offset the unhelpful psychological reaction was to show the victim how he or she may help others to avoid serious financial losses.
- "Financial Institutions are increasingly part of the solution." According to Naomi, about half of all states now mandate reporting of suspected financial abuse, either by making banks and credit unions mandatory reporters or by making "all individuals" who suspect such fraud mandatory reporters. Both David and Naomi said they are starting to see real results from mandatory reporters who have helped to thwart fraudsters and thereby have prevented additional losses.
The federal Consumer Financial Protection Bureau has several publications that offer educational materials to targeted audiences about financial abuse. One example was the CFPB's 44-page manual for assisted living and nursing facilities, titled "Protecting Residents from Financial Exploitation."
June 21, 2016 in Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (2)