Monday, June 18, 2018
One of our good readers sent us an item by CityLimits.org tracking recent complaints made to (and about) the NY Attorney General. The title of the article is They Say Legal Guardians Ripped Them Off-- and the State AG Let Them. I've come to expect that when I see an investigative piece on problems with guardians, I will read comments from a range of national advocates, such as Dr. Sam Sugar of Americans Against Abusive Probate Guardianship or Richard Black with the Center for Estate Administration Reform. Both individuals comment in this particular piece.
There are many challenges ahead for much needed reform efforts, including the fact that different laws can govern different forms of fiduciary relationships. For example, even though the article focuses in major part on "guardians," a label used to describe individuals or entities appointed by the court to assist an individual deemed incapacitated and unable to handle his or her own affairs without such a court-appointment, the article demonstrates that the problems can arise outside the guardianship arena.
In the opening tale for the article, the individual in need of assistance, a 31 year old disabled daughter, was apparently the the beneficiary of her deceased father's trust. The father became entangled with an untrustworthy individual shortly before his death, and that person was named the trustee. The actions by that individual -- described in the article as a "disbarred" lawyer and former state senator -- control much of the dynamic. It is not clear from the article whether the daughter's parents were estranged before the death of her father, thus sidelining the mother from accessing the trust in trying to help their daughter. Guardians later appointed by court for the daughter reportedly contributed to the costs for the estate. Yet key allegations of abuse focus on the actions of the alleged untrustworthy trustee, who was selected for this fiduciary role by the father, not the court.
The article reports on this as an example where the AG has allegedly declined to intervene following reports of fiduciary abuse.
Guardianship reform is important and, thank goodness, is ongoing in many states. But true reform is needed in the hearts and minds of abusive individuals in a variety of financial caregiving relationships, not just guardianships. The challenges for courts and law enforcement officers, including AGs and other prosecutors, will only grow without a stronger ethical commitment at the core.
June 18, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, June 15, 2018
Sad news is emerging from Los Angeles that Stan Lee, the legendary comic book author, film producer, Marvel Comic magnate and occasional actor (often with brilliant, subtle cameos) went to court this week. He was seeking a temporary restraining order against Keya Morgan, sometimes described as a business partner and long-time manager, who reportedly had been serving as a caregiver for Lee after the death of his wife last year. Stan Lee is 95 and the grounds alleged in the petition include "elder abuse." The court granted Lee a temporary order on June 13, and scheduled a further hearing for July. The defendant denies all charges.
Here are additional details from CNN Entertainment, including a collage of clips, sometimes sadly ironic given the charges, from some of Mr. Lee's appearances in films over the years.
Monday, June 11, 2018
My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of GPSolo, the ABA journal for solo, small firm, and general practitioners. Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns. I enjoyed her use of classic lines from the movie Jaws.
My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Friday, June 8, 2018
John Oliver, the star of Last Week Tonight focused on guardianship on the June 3, 2018 show. The segment focused quite a bit on some of the abuses that have been reported recently in the press. But, to Mr. Oliver's credit, he notes that sometimes, despite a person's efforts, a guardianship is needed. He provides suggestions for improving the system and for individuals on planning to minimize the chances of a guardianship going wrong. There is some good info in the segment, and he makes several important points, but in a comedic and satirical format.
The link to the segment is here. Be sure to watch through to the end, to see cameos from several celebrities offering advice on planning for incapacity (although they do get off track quite a bit) including health care powers of attorney and DPOAs. And who wouldn't want Tom Hanks to be their health care agent! (You have to watch the last bit to get that reference). Caveat: there is some "salty" language used throughout the segment.
June 8, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Television | Permalink | Comments (1)
Thursday, June 7, 2018
A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues. The January 2018 issue includes:
- Elder Bankruptcy
- Coordinating Representation: How Business and Elder Law Counsel Can Work Together to Meet Clients' Needs
- The Impact of Aging on Consumer Law
- The Intersection of Estate Planning, Family Law, and Elder Law
- Significant Regulatory Changes for Social Security Disability Insurance and Supplemental Security Income
- Considerations When Settling a Lawsuit for an Individual Lacking Legal Capacity or a Minor
Introducing the theme of the issue, attorney Christine Caswell writes:
While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.
June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, June 4, 2018
As we previously blogged, after a trial court judge struck the law, the California Attorney General filed an appeal. According to a recent article in the San Francisco Chronicle, California’s right-to-die law on hold for at least a month.
California’s right-to-die law for terminally ill patients will apparently remain suspended for at least another month after a judge on Wednesday reaffirmed his ruling that the law was illegally considered and passed during a special legislative session on health care.
[The judge] ruled the law invalid May 15 and halted its enforcement last Friday. It had been in effect since June 2016, allowing doctors to prescribe life-ending medication to mentally competent adults who have less than six months to live.
On Wednesday, the nonprofit Compassion & Choices ... asked [the judge] to suspend his ruling and cited its potential impact on two terminally ill patients, one of them an 82-year-old Marin County woman who has already obtained a prescription for life-ending medication. The judge denied the request.
The state attorney general also weighed in, seeking to have the order set asid eon the grounds that "the judge improperly issued a statewide order in a local lawsuit and also should have given his office 10 days, under state law, to file objections to Friday’s order before putting it into effect." The Judge has set a June 29 hearing.
The article offers this to describe the impact of the order. "Because of the ruling, doctors can no longer prescribe life-ending medication to dying patients, and a patient who had already been provided with the medication would be committing suicide by taking it, with implications for insurance coverage."
There have been sad stories covering the legal proceedings in New York of one couple's recent attempts to evict their 30 year old son from their home. We occasionally had similar matters in the Elder Protection Clinic at Dickinson Law. We even had a name for the situation -- "ghost children," as typically the adult child was living in one room, rarely interacting with the rest of the family and often entering or leaving when the parents were away to avoid communications. The older parents would implore us to "do something," but often they did not want to file formal eviction proceedings. Letters requesting departure and offering mediation sometimes worked, but more often did not.
I suspect that if you had been following the proceedings of the New York parents, you were worried about the outcome, as the son seemed to be digging in and pulling out all the stops to resist eviction. I know I worried when I first saw a new headline, reporting that a man had killed his elderly parents and then himself, rather than quietly depart. Tragically, that was a "second" case, in Illinois, not New York.
No easy answers here. The problems are a long time in the making.
Tuesday, May 29, 2018
As we reported last week, a trial court judge in California held that the California physician-aid-in-dying law was invalid. The state appealed, according to an article in the LA Times. A subsequent article in the New York Times reports that the appellate court declined a stay of the trial court's ruling pending the appeal, No Stay of Ruling That Tossed California Assisted-Death Law. "California's 4th District Court of Appeal refused to grant an immediate stay requested by state Attorney General Xavier Becerra. However, the court gave Becerra and other parties time to "show cause" — that is, provide more arguments as to why the court should grant the stay and suspend the lower court ruling.” Since no injunction was entered, the law still is in effect, as noted in the article. The California AG " argued that the measure was legitimately passed and asked [the appellate court] for quick action so that terminally ill people seeking options under the law wouldn't die "an excruciating, painful death" before the issue is finally decided."
A book I co-authored on The Law of Financial Abuse and Exploitation was inspired, sadly, by several cases we had in our Elder Protection Clinic at Dickinson Law in Carlisle Pennsylvania.
In one case, at first the relationship between great niece and great aunt had seemed to friends and neighbors to be loving and protective. It wasn't until the elder's care needs increased, and it turned out there was no money to pay for care by professionals, that the truth was uncovered. The aunt's money, close to a million over three years, was gone.
With the benefit of hindsight, you could see how the exploitation began -- with the younger woman asking for permission to use the elder's accounts for a few improvements and upgrades around the house. Then she stopped asking for permission. Eventually her spending was for fur coats, jewelry and a luxury car (actually, two). Her aunt no longer could see to review her accounts and there weren't any other relatives to ask questions. The niece probably didn't count on her aunt living past 100 -- or testifying against her at the criminal trial about the unauthorized spending, when she was 101. The younger woman tried to justify her behavior, testifying at trial that "she wanted me to have the money. She was going to leave it to me in her will."
Several friends, including Karen Miller, in Florida, sent me copies of another tragic tale, this time from Brooklyn via the New York Times. I suspect, that in this account of a relationship between an older widow and a local waitress, the younger woman probably told herself her "friend"wanted her to have the money. She too will be thinking about this in jail. Read She Found Comfort in a Brooklyn Diner, Then Lost Everything.
May 29, 2018 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, May 23, 2018
Both Becky and I have written about a California trial court's recent ruling that a California's law permitting physician assistance in death was enacted in an unconstitutional manner. The judge granted a window of five days before the ruling would become effective, to permit any appeal. That appeal has now been filed by the California Attorney General. From the Los Angeles Times:
California Atty. Gen. Xavier Becerra on Monday filed an appeal against a judge's recent ruling overturning the state's physician-assisted suicide law. . . .
Becerra's action Monday moves the case to an appeals court, which will decide the future of the law. He also asked that the law stay in place while the matter is further litigated, a request that will most likely be granted, said Kathryn Tucker, an attorney who heads the End of Life Liberty Project at UCSF/UC Hastings Consortium on Law, Science & Health Policy.
As Becky says, stay tuned. But probably best not to hold your breath while awaiting the next ruling.
A Closer Look at Continuing Care at Home Contracts (Sometimes Known as Continuing Care Without Walls)
As I prepare for some summer writing and speaking projects, I've been taking a closer look at Continuing Care at Home (CCaH), sometimes also called Continuing Care Without Walls. Pennsylvania was among the early states to license CCaH providers, doing so under the Pennsylvania Department of Insurance's regulatory authority for Continuing Care Retirement Communities (CCRCs).
CCaH is something of a hybrid, contract-based product, sort of a combination of “home care agency” and “long-term care insurance.” The customer makes a prepayment for access to specific services, to be provided in the customer's own home, The services offered tend to emphasize care coordination; several different types of plans may be offered by a single provider.
From the providers I've reviewed, CCaH contracts typically have an upfront “entry” or membership fee, plus monthly service fees. In some of the plans there is also cost sharing and deductibles for services. Overall, the fees, as one would expect, are lower than for traditional CCRCs, but can still be significant.
For example, in a recent report I reviewed, one operation described a series of contracts available. One contract involved a 90% "refundable" entry fee plan. In 2012, a prospective member who qualified at age 88 could expect to pay an entry fee of $147,160, plus monthly service fees ranging from $290 to $584.
In some instances, the company may charge annual fees, rather than a single entry fee plus monthly fees. For example, another Pennsylvania CCaH provider offers "life care plans," "home care plans," and "traditional life care plans." The first two contracts have annual fees, while the third, "traditional life care plan," is structured with a single upfront entry fee, plus monthly fees of 1% of the entrance fee.
At that company, for the "life care plan" with annual fees, a prospective member could select a "life time benefit" of between 1 and 7 years, plus a maximum daily benefit of between $75 per day to $250 per day, with options for a waiting period, cost of living adjustments, and "shared care." As of April 2016, if a prospective member at age 80 chose a life care plan with a 7 year "maximum life time benefit," no waiting period, no cost of living adjustment and no shared care, he or she could expect to pay annual fees of around $7,880 for a $100 per day benefit -- or up to $15,60o per year for a $200 per day benefit. Fees would be discounted by 20% for two or more people per household and the benefits and annual fee "may vary based on the member's health status at time of enrollment." Further, the provider cautions, "though not anticipated, the annual fee for members of life care and home care plans may be adjusted after the fifth anniversary of their continuing care agreement," and any such adjustments would be on a uniform basis for all members in a specific plan.
In Pennsylvania, all of the current providers of CCaH are connected to or developed by operators of brick and mortar CCRCs, and therefore the CCaH contracts sometimes offer priority admission to the related CCRC if resident care is desired. I don't think this connection between a CCaH program and a CCRC facility is necessarily required in other states.
Traditional long-term care insurance has had a troubled history nationally and in Pennsylvania, CCaH providers seem to avoid that history by staying closely tied to the positive reputation of a visible, attractive brick and mortar CCRC. However, CCaH contracts do not necessarily promise to use the staff or services from the related CCRC, and if so, the CCaH provider may turn to third parties, such as home care agencies, in the search for workers. The contract terms are key and require careful reading.
Pennsylvania currently licenses five CCaH providers. The longest operating provider is Friends Life Care at Home, a not-for-profit operation in southeastern Pennsylvania. It was organized in 1985 and according to registration information at the Pennsylvania Department of Insurance it has approximately 2,500 contracts in existence. Friends Life Care recently entered into a joint marketing agreement with SpiritTrust Lutheran Life.
Tuesday, May 22, 2018
NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits. The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more. NAELA members unable to attend may check the NAELA website for more information.
In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling. Congrats NAELA!
(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)
May 22, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, May 21, 2018
A number of news outlets reported that a trial court judge has overturned California's aid-in-dying law. As an example, the LA Times reported Riverside judge overturns California's doctor-assisted suicide law. The judge ruled "that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law." The law, which has been in effect about 6 months, has already been used, according to sources quoted in the article. "In the first six months California's law was in effect, more than 100 people made use of it to end their lives. Fifty-nine percent of them had cancer, according to state data." Both sides on this issue are quoted in the article. The state attorney general has 5 days from the order's entry to file an appeal.
Friday, May 18, 2018
Kaiser Health News published a compilation of recent stories about gun safety and one caught my eye: the advantage of doctors discussing gun safety with elder patients. Doctors Should Be Discussing Gun Safety With Aging Patients, Researchers Say.
The reference to the story from the LA TImes, As more older Americans struggle with dementia, what happens to their guns?seemed particularly on point and the KHN story published the opening from the LA Times article
The man had been a patient for decades, retired now from a career in which firearms were a part of the job. He was enjoying his days hunting, or at the shooting range with friends. But episodes of confusion had led to a suspicion of dementia, and the nights were the worst: At sundown, he became disoriented, anxious and a little paranoid, and had started sleeping with his loaded pistol under the pillow. One night, he pointed it at his wife as she returned from the bathroom. It wasn't clear whether he recognized her, but he was certainly confused — and she was terrified. Thankfully, the incident did not end in disaster.
Regardless of your position on the gun control debate, consider these statistics from the LA Times article
Roughly 1 in 3 adults over 65 in the United States is thought to own a gun. An additional 12% live in a household with someone who does.
As seniors turn 70, their odds of developing Alzheimer's disease in a given year jump from less than 1% (among those 65 to 69) to 2.5% (among those 70 to 74), and keep rising from there. By 2050, the number of older Americans with Alzheimer's is expected to reach 13.8 million.
The article discusses driver safety and draws corollaries to gun safety. The article highlights the lack of response to this issue at the state level:
No federal laws prohibit the purchase or possession of firearms by a person with dementia. Only two states, Hawaii and Texas, explicitly mention dementia or similar conditions in their firearms statutes.
In Hawaii, any person under treatment for "organic brain syndromes" is prohibited from owning a gun. Texas law makes individuals diagnosed with "chronic dementia" ineligible for a license to carry a handgun in public. But it does not limit such a person's right to purchase or possess firearms.
One expert quoted in the article describes this as not an issue of taking away someone's guns but instead a decision that focuses on the person's safety.
May 18, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, May 17, 2018
On May 15, 2018, a state judge issued a long-awaited ruling, concluding that the California Legislature violated the state constitution by enacting the state's End of Life Option Act that became effective in 2016 during a 2015 special session dedicated to healthcare issues. From the Los Angeles Times:
A Riverside County judge overturned California's physician-assisted suicide law on Tuesday, giving the state attorney general five days to file an appeal to keep the law in place.
California's law, which allows terminally ill patients to request lethal medications from their doctors, has been the subject of a fierce and emotional debate since it was approved in 2015. The state was the fifth in the nation to legalize the practice.
Superior Court Judge Daniel A. Ottolia said Tuesday that the California Legislature violated the law by passing the End of Life Option Act during a special session dedicated to healthcare issues, according to the plaintiffs in the case as well as advocates for the law.
"We're very happy with the decision today," said Alexandra Snyder, head of the Life Legal Defense Foundation, one of the groups that filed the lawsuit. "We will now wait and see what the attorney general does."
In a statement emailed to The Times, California Atty. Gen. Xavier Becerra said: "We strongly disagree with this ruling and the state is seeking expedited review in the Court of Appeal."
Wednesday, May 16, 2018
Yesterday, May 15, 2018, was designated by the U.S. Senate as "National Senior Fraud Awareness Day." The reason for the day, according to the Congressional Record is "To Raise Awareness About the Increasing Number of Fraudulent Schemes Targeted At Older People of The United States, To Encourage The Implementation of Policies to Prevent These Scams From Happening, and to Improve Protections From These Scams For Seniors."
Senator Collins for herself and 4 other Senators, and introduced the resolution, S. Res. 506.
Here it is in its entirety:
Whereas, in 2017, there were more than 47,800,000 individuals age 65 or older in the United States (referred to in this preamble as ``seniors''), and seniors accounted for 14.9 percent of the total population of the United States;
Whereas senior fraud is a growing concern as millions of older people of the United States are targeted by scams each year, including the Internal Revenue Service impersonation scams, sweepstakes and lottery scams, grandparent scams, computer tech support scams, romance scams, work-at-home scams, charity scams, home improvement scams, fraudulent investment schemes, and identity theft; Whereas other types of fraud perpetrated against seniors include health care fraud, health insurance fraud, counterfeit prescription drug fraud, funeral and cemetery fraud, ``anti-aging'' product fraud, telemarketing fraud, and internet fraud;
Whereas the Government Accountability Office has estimated that seniors lose a staggering $2,900,000,000 each year to an ever-growing array of financial exploitation schemes and scams;
Whereas, since 2013, the fraud hotline of the Special Committee on Aging of the Senate has received more than 7,200 complaints reporting possible scams from individuals in all 50 States, the District of Columbia, and the Commonwealth of Puerto Rico;
Whereas the ease with which criminals contact seniors through the internet and telephone increases as more creative schemes emerge;
Whereas, according to the Consumer Sentinel Network Data Book 2017, released by the Federal Trade Commission, people age 60 years and older were defrauded of $249,000,000 in 2017, with the median loss to defrauded victims age 80 and older averaging $1,092 per person, more than double the average amount lost by those victims between the ages 50 and 59 years old;
Whereas senior fraud is underreported by victims due to embarrassment and lack of information about where to report fraud; and
Whereas May 15, 2018, is an appropriate day to establish as ``National Senior Fraud Awareness Day'': Now, therefore, be it
Resolved, That the Senate--
(1) supports the designation of May 15, 2018, as ``National Senior Fraud Awareness Day'';
(2) recognizes ``National Senior Fraud Awareness Day'' as an opportunity to raise awareness about the barrage of scams that individuals age 65 or older in the United States (referred to in this resolving clause as ``seniors'') face in person, by mail, on the phone, and online;
(3) recognizes that law enforcement, consumer protection groups, area agencies on aging, and financial institutions all play vital roles in preventing scams targeting seniors and educating seniors about those scams;
(4) encourages implementation of policies to prevent these scams and to improve measures to protect seniors from scams targeting seniors; and
(5) honors the commitment and dedication of the individuals and organizations who work tirelessly to fight against scams targeting seniors.
May 16, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, May 15, 2018
Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session. I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July. The pending legislation includes:
- Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth. On April 16, 2018 this bill was referred to the Senate Appropriations Committee.
I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons. The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications.
- House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."
While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth. In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional. Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.
May 15, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)
Monday, May 14, 2018
As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018. The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos. In-person training programs are also under development, on a county-by-county basis.
I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.
Nisa also provided links to the new Maryland Rules on mandatory training for guardians: Md. Rules 10-108, 10.205.1, and 10-304.1. In addition, these rules refer to Guidelines for Court-Appointed Guardians of the Person and Property. Thank you, Nisa!
The state of Washington also is developing a program for "lay/family (non-professional) guardians training."
County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.
Other states have also been active in establishing education and testing for prospective or current guardians. Several states' programs have been developed following allegations of improper appointments or lack of oversight. We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.
A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes described in legislation or court rules as "nonprofessional guardians." Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons. Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members.
The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules. As depicted on the map, some states have adopted CGC certifications as the state standard for approval of "professional" guardians. In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.
The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians.
You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.
Tuesday, May 8, 2018
According to news reports coming out of Louisiana, the state's Department of Health will begin sending "eviction" notices to nursing home residents later this week. This strikes me as a particularly abusive form of gamesmanship connected to state budget negotiations. See what you think!
Louisiana's Department of Health will begin sending nursing home eviction notices Thursday to more than 30,000 residents who could lose Medicaid under the budget passed by the state House of Representatives.
"The Louisiana Department of Health is beginning the process of notifying all impacted enrollees that some people may lose their Medicaid eligibility," Department of Health spokesman Bob Johannessen said. "The goal of the department is to give notice to all affected people as soon as possible in order that they begin developing their appropriate plans."
Gov. John Bel Edwards' staff has planned a press conference Wednesday for more details, a day before the notices are set to be mailed to 37,000 Medicaid recipients in nursing homes or other long-term care facilities.
"(The Department of Health) told us they're sending out the letters May 10," said Mark Berger, executive director of the Louisiana Nursing Home Association, during testimony at the Senate Finance Committee meeting Monday.
The issue was front and center in Senate Finance, which was hearing public testimony on the budget sent to it by the House for most of the eight hours the panel met.
"This sounds like mass chaos," said Sen. Regina Barrow, D-Baton Rouge, who called the letter notification "very troublesome."
For more see the Monroe New Star Report on "Nursing Home Eviction Notices to be Sent Tuesday."
Sunday, May 6, 2018
As is true for many states, Maryland is increasing the education, support and supervision for guardians appointed by the Maryland courts. In connection with this, beginning on January 1, 2018, prospective guardians must watch a video-based "orientation program" before they are appointed guardian of a minor or disabled person. The 9-minute video introduces the "roles, duties and responsibilities" of a guardian and explains mch of what to expect if appointed by the Maryland Courts. Here is a link to the video.
What I particularly like about this video is the message "You Are Not Alone as a Guardian," and the emphasis that Court-appointed guardians are subject to the ultimate authority of the Court. I think that many courts are still struggling with their own roles in this regard, but here the lines of responsibility are explained clearly.
The balance here is delicate, requiring careful thought about how to provide threshold information essential for a candidate to make an informed decision about whether to serve, but without making the information so overwhelming that good candidates decline the role. The Maryland courts caution that this particular orientation and the related training requirements do NOT apply to public guardians or guardianships that terminate parental rights.
In my opinion, this type of video is a good first step. But just a first step.
May 6, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)