Friday, May 27, 2016

Filial Friday: Are Filial Responsibility Laws a Sign of the (Aging) Times?

Robert A. Mead, with many years of experience as a law librarian at the University of Kansas, the University of New Mexico and the New Mexico Supreme Court, and now serving as the Deputy Chief Public Defender for New Mexico, recently offered his take on claims made by family members and third-parties under state "filial responsibility" laws.  His article, "Getting Stuck with the Bill? Filial Responsibility Statutes, Long-Term Care, Medicaid, and Demographic Pressure," appears in the Elder Law Advisory published by Westlaw in May 2016 (and apparently available by subscription only).  He tracks the demographics of aging in the U.S. and surveys cases from Pennsylvania, North and South Dakota.  Based on research, Rob predicts:

The doubling of the number of elders in society will require a substantial increase in Medicare and Medicaid funding especially if a significant percentage of them are indigent in their last years. Without this increase, filial responsibility statutes and Medicaid estate recovery will likely be used by states to address shortfalls in Medicaid funding. . . .  Even without state authorities using filial responsibility statutes to seek Medicaid reimbursement, they will continue to be raised in related contexts. When siblings spar over the medical debts incurred by their deceased statutes and the effect of these debts on the probating of estates, filial responsibility becomes a complicating factor such as in Eori, Pittas, and Linderkamp cases. More insidiously, long-term care facilities are beginning to use filial support statutes to seek reimbursement for debts without waiting for resolution of whether the elder was eligible for Medicaid, as in Randall and Pittas. In some situations it will be financially advantageous for facilities to litigate against heirs rather than to settle for lower Medicaid rates. As the case law continues to develop and the demographic crisis grows, look for these novel uses of filial responsibility statutes to continue and become mainstream. It is incumbent upon lawyers representing clients in states with such statutes to plan and draft accordingly.

It is fun for me to see that Rob Mead, a former student from my own days at the University of New Mexico School of Law, has, entirely independent of my influence, kept his own eye on law and aging policy issues.

May 27, 2016 in Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, May 26, 2016

Life Care Centers of America: Legal Updates

Tuesday, May 24, 2016

Texas Appellate Case Demonstrates Significance of Contract Terms for Continuing Care Eviction

On April 28, 2016, the Texas Court of Appeals affirmed an award of some $145k in damages to an elderly couple for breach of a "Life Care" contract by their residential community.   In Barton Creek Senior Living Center, d/b/a Querencia at Barton Creek v. Howland, the residential community staff attempted to refuse to communicate with the children of a couple, in their 80s, on the reported grounds that "communication with their children was unworkable because of the discord with the children."  The facility, Querencia, reportedly soon "terminated the Life Care Agreement with the Howlands and ordered them to vacate the premises within thirty days." The Howlands did vacate the premises, moving to an assisted living community with a different pricing and service structure; however, they contended they were denied the "benefit of their bargain" with Querencia.  

On appeal, Querencia does not challenge the finding that it failed to comply with the Life Care Agreement, but contends that the evidence is legally and factually insufficient to support the damages awarded to Howland. Specifically, Querencia argues that the damages cannot be tied to the pre-termination notice being 30 days instead of [the contract's specified notice of]  60 days. It also contends that Howland does not deserve damages for assistive services used after termination that they were already using before termination. Finally, Querencia contends that it properly withheld ten percent of the Howlands' deposit pursuant to their contract.

The appellate court rejected these arguments with a textbook discussion of remedies for breach of contract necessary to protect the non-breaching party's expectation interest:

Although the Howlands employed private care providers while at Querencia, there is evidence that the Howlands' move to The Summit increased their monthly expenses because the monthly rent was higher at The Summit, it provided fewer services than Querencia, and services at The Summit were more expensive.... Howland claimed over a million dollars in damages, Querencia countered that Howland profited from the breach, and the jury awarded Howland $82,500 plus the unrefunded deposit. The evidence in the record supports the jury's exercise of its role as factfinder regarding the damages award. The evidence also supports the jury's award of $62,990 representing the portion of the Howlands' deposit that Querencia did not refund. Querencia asserts that it was entitled to retain ten percent of the Howlands' deposit under the terms of the Life Care Agreement. But the jury found that Querencia breached that agreement, and restitution is a permissible measure of damages for breach of contract.... The jury was empowered to and did decide that Querencia must compensate for its breach by returning the final ten percent of the Howlands' deposit.

The finding of breach appeared to have been predicated on the contract's specified grounds  permitting termination, which included fairly standard provisions such as inability to meet medical needs, nonpayment by the residents, or a resident's breach of "policies and procedures" that create a situation that is "detrimental to the health, safety or quiet enjoyment of the community by other residents or the staff." The court appeared to be persuaded by the argument that Querencia failed to comply with a further contractual provision, mandating parties be given an "opportunity-to-cure" in the event of disputes.  

Despite the affirmance on damages, the appellate court also set aside the trial court's award of $166k in attorney's fees for the plaintiffs, rejecting a "lodestar" argument for the award, and remanded the case for further proceedings on reasonable and necessary fees.

In reading the opinion (and the headnotes from Westlaw on the opinion, which refer to Querencia as a "nursing home"), I'm struck once again by the confusion that "continuing care" contracts, including so-called "life care" contracts, can cause for parties, although usually any landmines tend to affect resident rights, rather than providers.  Thus, I would anticipate that in the future, providers worried about protecting their right to terminate relations with "troublesome" individuals, will attempt to beef up their "policies and procedures," to give clearer rights to refuse to communicate with troublesome family members of residents.  

May 24, 2016 in Consumer Information, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 23, 2016

California Supreme Court Clarifies Parties Potentially Liable for "Neglect" Under State's Elder Abuse Law

I think it is safe to say that California has one of the most significant -- and for some, controversial -- "elder protection" laws in the U.S.  For example, while all states permit state authorities to investigate and intervene in instances of elder abuse, California's statute recognizes a victim's private right of action for damages, arising from physical abuse, neglect, or fiduciary abuse of an elderly or dependent adult. There are certain proof requirements and limitations on the damages that can be awarded under California's Elder Abuse Act, but, where the plaintiff shows clear and convincing evidence of recklessness, oppression, fraud or malice, the prevailing party can also obtain "heightened remedies," including "reasonable attorneys fees" and costs.  At the same time, the history of the California law also reflects a legislative tension between a determination to address elder abuse and concern about the potential impact of the broader remedy in so-called traditional "medical malpractice" claims.  This tension plays out in a ruling by the California Supreme Court in the long-running case of Winn v. Pioneer Medical Group Inc.  In the unanimous decision published May 19. 2016, the court helpfully summarizes its own holding:

We granted review to determine whether the definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code Section 15600 et seq.; the Elder Abuse Act or Act) applies when a health care provider -- delivering care on an outpatient basis -- failed to refer an elder patient to a specialist.  What we conclude is that the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. 

The court further explains, "It is the nature of the elder or dependent adult's relationship with the defendant -- not the defendant's professional standing -- that makes the defendant potentially liable for neglect.  Because defendants did not have a caretaking or custodial relationship with the decedent, we find that plaintiffs cannot adequately allege neglect under the Elder Abuse Act."

The California Supreme Court concluded that the Winn plaintiffs cannot bring a claim for statutory "elder neglect" arising out of allegations that treating physicians failed  for two years to refer an 83 year-old woman to a vascular specialist. The suit dates back to 2007-2009, with the patient alleged to have died from complications associated with chronic ulcers of her lower extremities.  The unanimous ruling reverses the California Court of Appeals' 2 to 1 ruling in favor of the statutory claim, issued in May 2013.  

This ruling does seem to leave nursing homes and similar "custodial" care providers potentially subject to the enhanced remedies of California's Elder Abuse Act. 

May 23, 2016 in Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, May 13, 2016

Evict, Reject, Discharge: Are Nursing Homes Following the Rules or Is the Problem Bigger than "Rules"?

My colleague Becky Morgan posted earlier this week on the AP news story on nursing homes' attempts to evict difficult patients.  This week the ABA Journal also linked to the AP story,  plus tied the statistical reports of a nation-wide increase in  complaints about evictions, rejections and  discharges to one man's struggle to return to his California care center following what should have been  short term hospitalization for pneumonia. 

The story of Bruce Anderson is a reminder that a need for high-quality, facility-based "long term " care is not limited to "elderly" individuals.  But it is also a reminder that individuals with serious behavioral issues, not just physical care needs, complicate the picture.  Anderson experienced a severe brain injury at age 55 following a heart attack,  but his younger age, lack of "private pay resources," and  a history of apparently problematic behavior, are all reasons why a "traditional" nursing home may seek to avoid him as a resident.  

The ongoing California litigation over Mr. Anderson and similarly situated residents heightens the need to think critically about whether we're being naive as a nation about "home is best" shifting of funding resources.  Certainly there are many -- and probably too many -- individuals in facilities when they could  be maintained at home if there was more funding to supplement family-based care.  

At the same time, I tend to see this as downplaying the very real needs for high-level, behavioral care for individuals who aren't easily cared for by families or "traditional" nursing homes, much less by hospitals organized around critical care.  It is about more than mere eviction, discharge and rejection statistics.  The 1999 Olmstead decision was a watershed moment in recognizing the need for de-institutionalization of those with disabilities.  But it may have pasted over the real need for quality of assistance and care in any and all settings, and what that means in terms of costs to a nation.   

My thanks to Professor Laurel Terry at Dickinson Law who took time away from the fun of grading her exams to send us the ABA story.  

May 13, 2016 in Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases | Permalink | Comments (0)

Sunday, April 24, 2016

"It's Always About the Money" - One Man's Work to Change Oversight of Guardianships

Here's is a new podcast of an interview with Rick Black on All Talk Radio (about 15 minutes, starting at the 3:25  minute mark), who has strong words about elder abuse based on his family's experiences with a guardianship in Clark County Nevada, plus his own additional research about guardianship systems in Nevada and beyond.  (You may have to give this time to load, as it is an embedded video file).  

 

 

For more, read the April 4, 2016 Editorial from the Las Vegas Review-Journal, entitled "Elder Abuse." 

 

April 24, 2016 in Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, April 11, 2016

When Remittiturs in Nursing Home Awards Trigger Inquiry into Campaign Finances for Judges...

I think it is safe to say that in recent years, juries have not been shy about awarding substantial damages in trials involving claims of negligent care, even -- or perhaps especially -- when the resident is very old.  Lately, several of our Elder Law Prof Blog posts have focused on nursing home providers' efforts to avoid jury trials through the use of pre-dispute, binding arbitration clauses in admission agreements.  See e.g. here and here.  However, there's another way in which litigation of nursing home care claims have triggered collateral legal disputes, and this time it is for the judicial system itself.  

In March 2016, former Arkansas state court judge Mike Maggio, age 54, was hit with a maximum prison sentence of 10 years, following his plea of guilty to federal charges for taking a bribe to reduce a verdict in a nursing home negligence case.  Maggio was alleged to have reduced a jury verdict in a nursing home case from $5.2 million to $1 million, after the owner of the facility reportedly made multiple campaign contributions to "PACs that were to funnel the money to Maggio for a planned race" for the state's Court of Appeals.  

In issuing the sentence, United State District Judge Brian Miller emphasized that while he had earlier rejected the prosecution's argument that any sentence should be guided by the multi-million dollar size of the remittitur, the maximum sentence was still warranted because "corruption in the judicial system especially erodes public trust in the system," noting "a judge is the system."  Details of the investigation -- as well as on-going litigation -- are provided in the Arkansas Times' Arkansas Blog.  

By comparison, in West Virginia, news media questioned a business transaction and contributions to a judge's re-election campaign, asking whether they affected the decision of the State Supreme court justice when she wrote the lead opinion in an appellate decision that reduced a 2011 jury verdict in nursing home negligence case from $90.5 million to $36.6 million.  The justice denied any improper influence or relationship with defense-side parties; following an investigation, the West Virginia Judicial Investigation Commission concluded the justice had no knowledge of the transactions in question, and it dismissed the ethics complaint in June 2015. 

The potential for campaign contributions to influence judicial election campaigns has long been one source of criticism of elections for judges.

April 11, 2016 in Consumer Information, Crimes, Ethical Issues, Federal Cases, State Cases | Permalink | Comments (0)

Wednesday, April 6, 2016

Massachusetts Court Rules MBTA Retirement Fund Records Are Subject to State Public Records Law

A specialized area of "law and aging" is accountability for retirement investments, including public employee pension funds.  In Massachusetts there has been a long feud between the Boston Globe media company and the Massachusetts Bay Retirement Authority (MTBA) Pension Fund over access to pension records, especially after the loss of some $25 million in employee retirements assets following the collapse of a hedge fund holding MTBA money.  Last month, a Massachusetts judge rejected key arguments by the MTBA's that the records in question were not subject to state public records law:

"The Court will ALLOW the Globe's motion for summary judgment and DENY the Retirement Board's cross-motion. The Retirement Board's preliminary assertions that the Supreme Judicial Court has already resolved the central question of statutory interpretation in the Board's favor, and that in any case the Globe may not press its claims because it failed to join other necessary parties, are both incorrect. On the merits, the Court concludes that the Board does indeed receive public funds from the MBTA, and thus that the Board's records are now subject to mandatory disclosure under the public records law unless they fall within one of the statutory exemptions. The Board's assertion that the 2013 statutory amendment only applies to records created after its effective date is also incorrect."

For more on the reasoning, see Boston Globe Media Partners, LLC v. Retirement Bd. of Massachusetts Bay Transp. Authority Retirement Fund, 2016 WL 915330 (Superior Ct. Suffolk County, Mass, March 9, 2016). 

See also Boston Globe media reports, including Judge Calls for Open MBTA Pension Files, detailing some of the related allegations by whistleblower Harry Markopolos and Boston University finance professor Mark Williams.  See also a consulting firm's March 9, 2016 Report for the MBTA that concluded MBTA had accurately reported accounting data on the pension funds during the years in question. 

April 6, 2016 in Estates and Trusts, Property Management, Retirement, State Cases | Permalink | Comments (0)

Monday, April 4, 2016

Accountability in Guardianship & Conservator Cases: Latest from Nevada

Under most state laws governing guardians and conservators, appointed fiduciaries are required to make reports to the court at regular intervals, usually beginning with the initial inventory of the ward's assets, followed by distribution reports on at least an annual basis.   As part of the ongoing investigation into accountability for guardianships under the jurisdiction of the district court in Clark County (Las Vegas) Nevada, an internal court review apparently demonstrated key weaknesses.  As reported by the Las Vegas Review-Journal in an April 1, 2016 article:

An internal review of guardianship cases in Clark County showed that less than half are in compliance with state laws and that most vulnerable adults are stripped of rights without an attorney.

 

District Court Judge Diane Steele provided an in-depth overview of the county’s guardianship caseload during a presentation to the Nevada Supreme Court commission studying guardianship. The panel has been meeting since last summer in an effort to fix the state’s troubled system. The commission was formed following a Review-Journal series highlighting the flaws and lack of oversight of county’s guardianship system that watches over thousands of at-risk adults, called wards.

 

Most compliance issues stemmed from family members not knowing they needed to file annual reports for their incapacitated family member, according to the report.

 

But the study showed that about 850 of the 3,800 active cases have not filed the required annual accountings that show how a ward’s money was distributed and spent over a 12-month period. In 975 cases, the initial inventory — which lists the assets of the ward such as real estate, vehicles and liquid assets — was also missing, the report said.

For an interesting national perspective on the need to establish more effective court systems, from the perspective of the National Association for Court Management (NACM), see this well-presented recording of a webinar on "How to Protect Our National's Most Vulnerable Adults through Effective Guardianship Practices."  The webinar, with excellent slides and lasting about 50 minutes (plus another 10 minutes of Q & A), is undated but appears to be fairly recent, as one of the slides features news reports from Las Vegas.

April 4, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Friday, March 25, 2016

Filial Friday: Family Caregiving & Standing Issues for Family Members

The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.  

The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws."  She concludes:

The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.

In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.  

In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."  

The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment.  "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a).  Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."    

For more see In re Skinner, ___ Fed Appx. ___, 2016 WL 850950 (3d Cir. 2016). 

March 25, 2016 in Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 24, 2016

More on Florida CCRC's Struggle with State Regulators -- and Workers

Earlier this week, I reported on the Florida Office of Insurance Regulation's actions affecting University Village, a Continuing Care Retirement Community (CCRC) in west Florida.  Additional events are now coming to the surface in media reports, including turmoil with employees over salary and benefits:

Workers from the Nursing Center at University Village made a lot of noise walking a picket line, protesting salary caps and reductions in benefits. This labor unrest comes while the new owners of University Village, Westport Holdings of Tampa, struggle to stop the state from yanking their license and shutting them down.

 

Health care workers represented by the Service Employees International Union are protesting working without a contract since December. Westport Holdings claims through the years the University Village nursing center was overly generous to its employees, and it’s time to reel in costs.

 

“What do they consider to be generous? I’ve been working with them for over 20 years and I haven’t seen $20 an hour yet,” Scott said.

 

Management wants to cap salaries and reduce health care benefits. It contends workers at University Village are paid more than employees at other local facilities.

For more, see News Channel 8's report on Employees Protest Benefit Cuts at Embattled Hillsborough Retirement Community.

March 24, 2016 in Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 21, 2016

Florida Governor Signs Second Wave of Reform Laws for Public and Private Guardians

On March 10, 2016, Florida Governor Rick Scott signed into law additional rules for the state's use of guardians. The move comes on the heels of a first wave of reforms enacted in 2015

The two waves of legislation follow media reports and public protests in specific locations in Florida, including Palm Beach and Sarasota. The latest law establishes a new state-wide Office of Public and Professional Guardians, and includes directions that the Office establish a system for appointment and monitoring of trained professionals, to serve where necessary as limited guardians, guardian advocates or plenary guardians.  Such "public" guardians are intended to be a last option, when family members are inappropriate, unable or unwilling to serve. 

In addition to the legislative actions, there are reports of court-directed changes to address potential conflicts of interest that could reduce the incentive for critical review and oversight.  For example, in Palm Beach, media reports put a spotlight on relationships between judges and lawyers in that county and especially on one judge's spouse, a lawyer who often received court-appointments and who was criticized for billing and accounting practices in some cases where she was the court-appointed guardian. 

For earlier reports on Florida's guardianship history, see this Blog's report on "Florida to Consider Establishment of Office of Public and Professional Guardians."

For a longer perspective on the recognized need for more effective state systems for guardianship review, see the GAO report (11-678), released in 2011, that warns that "Given limited funding for monitoring, [state] courts may be reluctant to invest in [better] practices without evidence of their feasibility and effectiveness."  See also GAO 2006 report (06-1086(T)), titled "Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People."

Further, for findings and recommendations made to the Uniform Law Commission following a summit in 2011, see University of Missouri Law Professor David M. English's report, "Amending the UGPPA to Implement the 3rd National Guardianship Summit."

March 21, 2016 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, March 20, 2016

Old and Behind Bars

We have previously written about the topic of elder inmates and the implications for prisons with the graying of the prison population. Here is one more story on the topic, published March 17, 2016. Pew Charitable Trust's Stateline (which "provides daily reporting and analysis on trends in state policy....") ran the story, Elderly Inmates Burden State Prisons.

Nearly every state is seeing that upward tick in elderly state prisoners. In Virginia, for example, 822 state prisoners were 50 and over (corrections officials usually consider old age for prisoners to begin at 50 or 55) in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.

For state prisons, the consequence of that aging is money, more and more of it every year. Health care for aging prisoners costs far more than it does for younger ones, just as it does outside prison walls. Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.

In terms of reducing the number of elder inmates, according to the study, some states are using diversion programs, early release or compassionate release.  We all have heard about increasing longevity, but that doesn't necessarily explain the rise in elder inmates. The story notes that correctional personnel offer two factors to explain this rise: "[o]e is a steady increase in the rate of older adults entering prison. The second, and more potent, factor is changes enacted in the get-tough-on-criminals 1990s that resulted in longer prison sentences."

Knowing about the physical limitations some may have as they age, one can only imagine the accommodations prisons have had to make, including the use of "ramps and shower handles and ... other physical modifications. Many prisons have had to create assisted living centers with full-time nursing staffs.... In addition, at least 75 U.S. prisons ..., provide hospice services for dying prisoners...."

One prison mentioned in the story has an ALF, but the waiting list is such that prisoners must need assistance with 2 or more ADLs to be considered. Poor health when entering prison is not unusual. And being old and in prison may be even tougher than for younger inmates.

Prison is a particularly treacherous place to get old. Getting to a top bunk is difficult for many aging prisoners, as is climbing stairs. Hearing loss, dementia and general frailty can make it difficult to comprehend or obey rules. And being infirm in an institution full of young predators can make older prisoners vulnerable. “If there’s an old lion or gazelle... the young ones are going to take advantage.”

Once they get out, finding a place to go becomes another challenge according to the article. Some states have taken different approaches to deal with the graying prison population, from financing the facilities that provide the needed care (such as a dementia unit in the prison) to  contracting with a private facility to provide the care to "geriatric conditional release."

And what about the likelihood of reoffending?  "Studies have found that older ex-offenders are less likely than younger ones to commit additional crimes after their release. But politicians and the public don’t seem willing to release former murderers, rapists and sex offenders, even though they are decades removed from their crimes and physically incapable of repeating them...."

March 20, 2016 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 17, 2016

Los Angeles Times: "Visitation Rights" Bills Under Consideration in Ten States

To follow up on an earlier Elder Law Prof Blog post about recently enacted "visitation rights bills," we note that the Los Angeles Times has reported on advocacy efforts by high-profile children such as Catherine Falk, daughter of actor Peter Falk, and Kerri Kasem, daughter of Casey Kasem, in support of similar legislation in other states: 

Though Falk and Kasem work independently, they've become a powerful one-two punch for reforming visitation laws, stumping for change in more than 30 states. Falk says her proposed legislation is now being considered in 10 states; Kasem's bill has already been adopted in three — California, Iowa and Texas.

 

The two agree their efforts are getting notice because of their celebrity fathers, and have little problem with such an advantage. "This isn't the Casey Kasem Bill, or the Mickey Rooney Bill, or the B.B. King Bill," Kasem said, referring to other personalities who went through similar elder battles. "It's the Visitation Rights Bill, and it affects thousands in the U.S."

The comments posted in reaction to the article are also interesting, with some pointing out that in both the Kasem and Falk families, the disputes involved women married for decades to the celebrities in question.   Others point to the question of how ordinary families cope with these kinds of access issues, especially without the money or time to pursue rulings by courts.

For more read "These Children of Celebrity Dads Are Taking Their Stepmoms to Court."

March 17, 2016 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, March 16, 2016

A Window Into New York Legal Fees For Guardianship Proceedings

A recent opinion in Matter of L.H (M. H.), a contested guardianship matter that was eventually settled, provides a window into legal fees.  In this New York case, following a settlement, the court was asked by the parties to determine reasonable fees to be paid to the attorney who served as the "court evaluator" and the attorney who successfully represented the Alleged Incapacitated Person (AIP) in resisting the guardianship.  

The court noted the guardianship was part of larger family disputes following a divorce.  As part of the settlement, the petitioner, a family member of the AIP, withdrew the petition for appointment of a guardian.   The parties stipulated that the fees could not exceed $50,000.  That amount was set aside for any payments ordered by the court, funded by a trust held by the petitioner (not the AIP). 

The court considered this withdrawal to be the "functional equivalent" of a dismissal, giving the court discretion under the statute to allocate fees in such proportions as it deemed just. 

As required by New York Law, the court made detailed findings.  The court concluded:

  • "[The evaluator] performed in an extraordinary manner under difficult circumstances ... [and her] report focused a spotlight on the amended petition's lack of merit, and was instrumental in resolving this proceeding."  The court awarded the evaluator $22,748 for 82.75 hours of professional services at $275 per hour.
  • "[T]he efforts [of the attorney for the AIP] led to a positive outcome for the AIP, with her civil liberties fully intact, there being no need for a guardian for her. Attorneys who have similar experience and status within the guardianship bar charge between $400 and $600 dollars per hour for their services.  However, in view of the agreed upon $50,000 cap on the possible awards for the feeds incurred... [the attorney for the AIP] is awarded $27,051.25... as reasonable compensation (at $335.00 per hour) for 80.75 hours of legal services."

The court observed that the lawyer for the AIP "is one of the preeminent guardianship and elder law attorneys [in] New York State."

March 16, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases | Permalink | Comments (0)

Monday, March 14, 2016

Al Jazeera America Reports on "Guardianship Fears" in Nevada

Here is a 12 minute account of two families involved in older person guardianships, where the court appointed a single, non-family member as guardian in Clark County, Nevada.  The presentation is by Al Jazeera America, aired for the first time in March 2016:

 

The events in Nevada have sparked larger concerns about "guardianship abuse."  The video is both disturbing and frustrating, especially as we hear primarily from family members in the presentation. There are hints of important, underlying legal issues, including:

  • adequacy of notice to alleged incapacitated persons (AIP) prior to any court proceeding;
  • adequacy of notice to family members of the AIP
  • proper use of guardians ad litem
  • availability of legal counsel to the AIP
  • what procedural requirements exist for a finding of incapacity
  • what definition is used for incapacity
  • whether limited guardianships are used, and if not, why not
  • what training, if any, is given to guardians
  • what accounting methods are used for review of conserved funds

The important topics revealed in the news reports seem ripe for in-depth research by objective academics, including law school academics. Anyone looking for that "hot" topic for next summer's project?  

For earlier Elder Law Prof Blog posts on this topic see:

If the Issue is Accountability, Which is Better? Power of Attorney or Guardianships?

WSJ: Are Guardianship Systems Under Critical Review? 

Removal of Private Guardian is Latest News in Challenge to Nevada Elder Guardianships

March 14, 2016 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 7, 2016

The Casey Kasem Legacy? States Adopt "Notice, Communication and Visitation" Laws

In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.  

Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.  

To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:

  • Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause."  Changes to the law became effective on July 1, 2015.
  • Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications.  For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
  • California, Assembly  Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail."  The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care.  For more on the California legislation, signed by California  Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.

These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect.  It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.

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March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Friday, February 26, 2016

Filial Friday: "Updating Connecticut's Filial Responsibility Statutes"

Quinnipiac Law Student Katherine C. Clark has recently published a note titled "Duty to Reform: Updating Connecticut's Filial Responsibility Statutes," in the Quinnipiac Probate Law Journal (Vol. 29, page 45, 2015).

The author argues for repeal of Connecticut's criminal law and modifications of the state's civil laws regarding filial obligations, arguing in part that:

Connecticut should define indigence to include only those elderly people receiving state assistance, and those whose total income falls below a certain amount. This limited definition ensures that those elderly people who have a legitimate need for assistance would have their needs met.
 
 
Additionally, using those two benchmarks could limit any sort of fraudulent claims. It is relatively easy to determine if a party receives state assistance, so that verification is not overly burdensome. However, by also taking into account the total income, parents who are not recipients of state assistance, but who still have unfulfilled needs, may still gain access to the care they need. Another important consideration is determining at what age parents are entitled to protection. Setting a specific age, such as 65, would make it clear when the statutory obligation begins.
 
The full article currently appears available only through a paid service, such as Lexis.  

February 26, 2016 in State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, February 16, 2016

New York Summer Internship Opportunity for Law Students Interested in Protection of Older Adults

Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:

The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation. 

 

Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale.  Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse. 

 

Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse. 

 

Past issues have included HIPAA regulations, questions surrounding legal capacity, immigration, powers of attorney, Medicaid eligibility, copyright, and right to privacy.  The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters.  The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. To apply, please send a resume, cover letter and writing sample to deirdre.lok@hebrewhome.org.

February 16, 2016 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Grant Deadlines/Awards, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 10, 2016

Criminal History Not Bar to Employment in SNF In Pa.

Elderlawprof blog founder, elderlaw prof extraordinaire and renaissance woman, Professor Kim Dayton sent the following article Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law .  According to the article, the state has decided not to appeal a decision striking a Pennsylvania law  that "prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories." The article explains that the law contained a lifetime employment ban in the state's APS statute.  Part of the challenge to the law is that the statute didn't differentiate  between the types of crimes, circumstances or even when the crime was committed, so something minor or a crime committed decades ago would count in imposing the lifetime ban.

The opinion is available here.

February 10, 2016 in Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)