Thursday, March 6, 2014
In companion appellate cases, a brother and sister argued the Commonwealth of Pennsylvania was "collaterally estopped or otherwise barred by the constitution and/or statute" from bringing criminal charges against them arising from payments from a trust account, because of a civil order "approving" the final accounting in the estate. Pointing out that the state was not a "party" to the Orphan's Court proceeding, even if it had an interest in proper disbursement of estate funds, the Pennsylvania Superior Court rejected the estoppel arguments as a "matter of law."
The Court observed, "As [Charles] McCullough has indentified no ruling or filing in the certified record that made the Commonwealth a party to the Orphan's Court proceeding, we conclude that it was not a party. As such, collateral estoppel cannot apply."
The rulings in Commonwealth v. Charles McCullough and Commonwealth v. Kathleen McCullough, decided on February 27, allow the siblings' cases to go forward on multiple criminal counts, including allegations of theft by unlawful taking and conspiracy. The allegations go back to 2007, with multiple continuances of the scheduled trial dates.
The court appeared to credit the Commonwealth's theory that the complexity of the case was largely the result of the brother, a licensed attorney, who "intentionally obfuscated his roles as trustee and agent," creating confusion on the part of the bank, a co-trustee. The brother was charged with "24 crimes arising from his actions as an agent and co-trustee for Shirley Jordan, now deceased. Jordan was approximately 90 years old, a widow without any children, and living in a senior living center when she executed a springing power of attorney in favor of McCollough." The Court observed that it was estimated that "Jordan had assets of approximately fourteen million dollars at the time."
Charles is accused of misusing Jordan's assets for his own benefit (including an alleged $10,000 gift to a charity allegedly connected to his family) and of arranging for his sister to be hired at an "exorbitant" rate of $60 per hour for companion services for the elderly woman, as compared to a "Department of Labor estimate of average wages of $8.63 to $9.74 per hour."
The appellate opinions in the cases are fairly dry. In fact, the sister was charged with theft of what, at first blush, seems like a fairly small sum, $4,575.01.
The larger back story, however, includes the allegation that the sister was "hired" as a companion by her brother, using his authority under a Power of Attorney, just weeks after she had been fired and accused of misappropriating more than $1 million from her previous corporate employer. In a separate criminal proceeding, Kathleen McCullough was convicted in 2010 of theft from two companies that employed her, as detailed in the Pittsburgh Post-Gazette.
Thursday, February 13, 2014
In August, 2013, we reported on the case of Barbara Mancini, charged with unlawful assisted suicide under Pennsylvania law, for the death of her 93 year old father, on hospice. Mancini, a nurse, was alleged to have provided her father with a fatal dose of morphine. When hospice employees learned the circumstances of the transmission, a report was made that resulted in emergency removal of the father to the hospital, where he died four days later, followed by the criminal charges against the daughter. Pennsylvania's Attorney General took over prosecution of the case, after the local D.A. reported a conflict of interest.
On February 11, a county Common Pleas Court judge issued a multi-page opinion, dismissing the case against Mancini. News reports point out that the court order was issued on the one year anniversary of her father's death. The parties had been under a gag order. Mancini has begun speaking about the case following the court's ruling, with support from organizations such as Compassion & Choices.
My Elder Law Prof colleague Becky Morgan posted earlier today, asking whether "aid in dying" is a trend. More evidence in Pennsylvania that the answer is "yes," although we have not yet seen major support for changes at the legislative level in Pennsylvania.
My own reaction is that on several key fronts, including same sex marriage equality and legalization of marijuana, social change advocates have discovered there is enormous potential in "states' rights" -- once more the fortress for conservatives who opposed social change -- to build support, state by state, and thereby achieve cutting edge law reforms. Social media play increasingly important roles in organizing support. Perhaps this can be seen as a "Face Book" approach to building momentum for social change and law reform.
Wednesday, February 12, 2014
Does your state have a statutory cause of action for "elder abuse?" While all 50 states have some form of older adult protective service legislation that authorizes state authorities to investigate and intervene when reports are made of suspected abuse, not every state recognizes the right of the affected individual to seek damages or other relief from the perpetrator by proving violation of those same laws. In states that do recognize a private right of action, the statutory grounds may provide a clear set of elements for proof of abuse, neglect, abandonment, or financial exploitation, thus supplementing the common law, and may also provide the prevailing party (sometimes limited to prevailing plaintiffs) with a right to recover attorneys fees.
California is probably the state with the best known statute authorizing private suits, including a right to seek attorneys fees, at Cal. Welf. & Inst. Code Section 15657 et seq. California's law was first adopted in 1991 as the Elder Abuse and Dependent Adult Civil Protection Act.
However, the history of application of California's law has not been trouble-free. In "Why Many Meritorious Elder Abuse Cases in California Are Not Litigated," (Winter 2013 Student Note, University of San Francisco Law Review), the author identifies several factors negatively affecting the likelihood of victim recovery, including lack of counsel willing to take cases, evidentiary issues such as confusion over burdens of proof, conflict within the victim's family affecting the lawyer-client relationship, and pressures to change or limit relief urged by institutional defendants.
Sunday, February 9, 2014
Recently an individual contacted me with a fact pattern to present on our Blog, a variation on what we've written about in the past. Here are the basics. I've assigned some gender roles to make the fact pattern easier to follow:
The daughter of an older parent wants to know whether she has a legal "duty" to interfere with her brother's role in the life of their parent, where it appears the brother is failing to either apply for Medicaid or otherwise pay the parent's rehabilitation facility. The parent is not unhappy with the son's actions (or rather, inaction), and in fact declined to give power of attorney to the daughter, even when told of a likely "eviction" for nonpayment of the bill. The parent has mostly recovered from the medical crisis that triggered the need for care -- and just wants to go home. Parent has made it clear to daughter that her help is "unnecessary."
The complication is the size of the unpaid bill, more than $100,000. Apparently the care facility, approved to receive Medicare and Medicaid, is now demanding that the daughter pay the bill. Apparently no one applied for Medicaid and it is unclear whether Medicare ever paid. Daughter doesn't know much about her parent's income, but assumes it is limited and probably the only asset is a house, where the widowed parent lives when not in a hospital or in a care facility, and where the brother also resides.
The rehab facility is in Pennsylvania, home to "filial support" laws that have been enforced against adult children, with or without evidence of fault on the part of the child who is sued. Under Pennsylvania's law, those with statutory standing to pursue a support claim include a "person" who has provided care or maintenance, and that has been interpreted to include residential care facilities. We've discussed tough filial support decisions before on this Blog, including Health Care & Retirement Corp. of America, v. Pittas, (Pa. Super. Ct. 2012).
Thus, a lawyer is probably going to have to break the bad news to the daughter that the facility arguably has a potentially viable claim under 23 Pa.C.S.A. Section 4603. Daughter would appear to have some equitable defenses, including laches, but nothing that is expressly provided in the Pennsylvania statute. But who can afford to defend such a case? The facility appears to be using the child's potential liability under filial support laws to insist the daughter take action, either to obtain a guardianship or other order that would permit her (force her?) to apply for Medicaid -- and the threat may work. The longer she waits, the tougher it will be to get sufficient retroactive coverage. But in this instance, it is not clear whether the parent's capacity is impaired, or whether the parent is simply following a long pattern, even if unwise, of preferring one child's "help" over the other.
The moral question of "Am I my brother's keeper," becomes a Family Keeper's Dilemma, when you add in the third part of the triangle, a parent in need of care or protection, against their will. And the moral question becomes a legal liability question, when a filial support law that permits third-party suits is involved.
For another Family Keeper's Dilemma, see the Washington Court of Appeals' January 14 decision, "published in part," in the case of In re Knight, addressing the level of proof required for one son to obtain a Vulnerable Adult Protection Order, to prevent his brother, with a mental health history and a criminal record, from continuing to live with or near their 83-year-old mother. The mother opposed the protection order.
Thursday, January 30, 2014
Recently I received a communication from a professional agent, the head of a nonproft guardianship organization, and someone I have watched in action for eight years. He and his team of carefully supervised agents work on behalf of elderly clients, disabled persons, and family members to handle financial matters. They are paid modestly, on a sliding scale, based on the client's income or estate. Sometimes they are operating as the court-appointed guardians, while other times their authority was granted by the principal through a POA, often with the cooperation (and sometimes the gratitude) of the family.
This professional reported to me that they "are having increasingly difficult times using our authority for legitimate purposes, to the point where we have to subpoena information from banks as the guardian, because they will not accept our appointment." Further, he reports "some banks are not honoring our POA or are adding unreasonable burdens, not required by law, leaving us unable to assist an older person."
Here is an experienced agent, who is trying do the job as a fiduciary in a highly professional manner. On the other side of the aisle are banks and other financial institutions, who have become understandably "gun shy" because of increasingly high profile cases of "bad" agents -- often family or "friends" -- who have misused their authority.
Well, as you might guess, this very topic has generated a timely CLE program! "Dealing With Financial Institutions in Estates, Trusts and with POAs" is the title of a half-day program sponsored by the Pennsylvania Bar Institute that will take place at the following dates and times:
- Tuesday, February 4, 2014, from 9 to 1:15, in Philadelphia, PA
- Wednesday, February 26, 2014, from 9 to 1:15 in Pittsburgh, PA
- Monday, March 3, 2014, from 9 to 1:15, in Mechanicsburg PA
- Live Webcast on Monday, March 3, 2014 via webcasts.pbi.org
The program will focus on "bridging the divide" between financial institutions and agents, to help both sides better understand the powers and limitations conferred by law. In additional to "family" fact patterns, the program will offer insights into fiduciaries acting on behalf of business owners. The faculty include experienced lawyers representing financial institutions and individuals -- plus one of those pesky law professor types.
Pennsylvania, as is true in other states, has a number of potential changes in law pending at the state legislature, influenced in part by the Uniform Power of Attorney Act changes, first recommended for adoption by the states in 2006. The program will provide the lates updates and trends.
For more, including remote access to the live webcast, go to the Pennsylvania Bar Institute's webpage, here.
Wednesday, January 29, 2014
Family Court & Medicaid: Does It Have a Role in Allocating Income Between Community Spouse and Nursing Home?
In R.S. v. Division of Medical Assistance & Health Services, released for publication by the Appellate Division of the Superior Court of New Jersey on January 23, the state's Medicaid agency successfully argued that a Family Court order allocating the institutionalized spouse's income to support for the community spouse was not binding on the agency in determining the Community Spouse Monthly Income Allowance (CSMIA). Thus, in the case before the court, the community spouse who had an annual salary of $22,659 was limited to the CSMIA calculation of $1,514 per month as support from her institutionalized husband, rather than the Family Court's order of $3,460 per month.
The appellate court ruling appears to be strongly influenced by facts suggesting the Family Court award, which was not opposed by the husband, was the result of Medicaid planning advice, rather than a fact-based determination of spousal support among separated or divorcing spouses. The appellate decision begins by noting the court is "asked once again to address 'the continuing tension between the State's effort to conserve Medicaid resources for the truly needy and the legal ability of institutionalized Medicaid recipients to shelter income for the benefit of their non-institutionalized spouses,'" quoting a previous New Jersey opinion in 2005.
Despite statutory grounds under Medicaid law to "protect" community spouses against "impoverishment" when their husband or wife goes into a nursing home, this ruling permits state calculations of Medicaid allowances to control just how much (or rather, how little) "protection" is available, at least where the allocation occurs at or near the time of nursing home admission.
Tuesday, January 28, 2014
Senior Care -- in all of its guises -- is Big Business. And much of that big business involves government contracts and government funding, and therefore the opportunity for whistleblower claims alleging mismanagement (or worse) of public dollars. For example, in recent weeks, we've reported here on Elder Law Prof on the $30 million dollar settlement of a whistleblower case arising out of nursing home referrals for therapy; a $3 million dollar settlement of a whistleblower case in hospice care; and a $2.2 billion dollar settlement of a whistleblower case for off-prescription marketing of drugs, including drugs sold to patients with dementia.
While the filing of charges in whistleblower cases often makes headlines, such as the recent front page coverage in the New York Times about the 8 separate whistleblower lawsuits against Health Management Associates in six states regarding treatment of patients covered by Medicare or Medicaid, the complexity of the issues can trigger investigations that last for years, impacting all parties regardless of the outcome, including the companies, their shareholders, their patients, and the whistleblowers, with the latter often cast into employment limbo.
Penn State Dickinson School of Law is hosting a program examining the impact of "Whistleblower Laws in the 21st Century: Greater Rewards, Heightened Risks, Increased Complexity" on March 20, 2014 in Carlisle, Pennsylvania.
The speakers include Kathleen Clark, John S. Lehman Research Professor at Washington University Law in St. Louis; Claudia Williams, Associate General Counsel, The Hershey Company; Jeb White, Esq., with Nolan Auerbach & White; Scott Amey, General Counsel for the Project on Government Oversight (POGO); and Stanley Brand, Esq., Distinguished Fellow in Law and Government, Penn State Dickinson School of Law.
Stay tuned for registration details, including availability of CLE credits.
January 28, 2014 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 22, 2014
The always thoughtful ElderLawGuy, Jeff Marshall, has a great blog post on the complications that can arise from use of powers of attorney, especially with financial institutions. He uses Pennsylvania law to develop the topic, but there are certainly parallels in other states.
Monday, January 20, 2014
I've been catching up on reading of practitioners' blogs. I quickly came across interesting discussions of potentially cutting edge decisions in recent law and aging cases. Here's a selection:
- From Tucson, Arizona, Robert Fleming's Legal Issues Newsletter reports on the background of the Arizona Court of Appeals decision on January 2, 2014 in Savittieri v. Williams, affirming the post-death annulment of a woman's marriage for lack of capacity.
- From Dearborn Michigan and Pittsburgh, Pennsylvania, John Payne's Off the Top O' My Head, comments on recent decisions within the Third Circuit that address the use of spousal annuities or trusts in Medicaid planning. For example, he discusses the January 14, 2014 ruling in the United States District Court, Western District of Pennsylvania in Zahner v. Mackereth, that makes fact-specific rulings in three consolidated cases involving annuities and which also, surprising, revisits the dormant "Granny's Lawyer Goes to Jail" provision of federal Medicaid law. Fortunately for attorneys, the court agrees with former Attorney General Janet Reno that application of the law to legal advice is unconstitutional. Nonethless, I think it is safe to say that the Pennsylvania Department of Public Welfare's attempt to push the law is an indication of the battle lines being drawn over use of annuities.
- From Fairview, Oregon, Orrin R. Onkin's Oregon Elder Law, reports on an array of elder abuse cases, including a 2013 decision by the Oregon Court of Appeals affirming an award of treble damages under the state's elder abuse statute against an ambulence company, in Herring v American Medical Response Northwest, Inc.
Thursday, January 16, 2014
We've blogged several times in recent months about state court rulings on enforcement of arbitration provisions in nursing home admission contracts, especially in the wake of the U.S. Supreme Court's ruling in Marmet Health Care Center Inc. v. Brown, 132 S. Ct. 1201 (2012). See here, here and here.
The latest interesting decisions arrived on the same day, January 13, 2014, from the Massachusetts Supreme Court. First, in Johnson v. Kindred Healthcare Inc., the court held that although a "health care agent" operating under a written advance directive had signed the nursing home's admission agreement containing a mandatory arbitration provision governing "all disputes," such action was not an authorized "health care decision," and thus was not binding on the patient under Massachusetts' health care proxy statute.
The court notes that its decision is consistent with the view of the "majority" of courts in other jurisdictions that have considered similar issues, and emphasized the intention of the Massachusetts legislature in framing that state's governing statute:
"We frame the matter differently [than did a contrary decision by the Supreme Court of Tennessee in a 2007 decision]. That a competent principal could have decided to enter into an arbitration agreement does not answer the core question we confront: whether our Legislature intended the term 'health care decision' to include the decision to waive a principal's right of access to the courts and to trial by jury by agreeing to binding arbitration. Our health care proxy statute reflects no such intent."
The Massachusetts Supreme Court was unpersuaded by the nursing home's argument that its decision promotes "uncertainty concerning the scope of a health care agent's authority." The court reversed the trial court order compelling "mediation or arbitration," and remanded for trial on the allegations that the nursing home's negligence caused the death of a resident of the facility.
Second, on the same day, the Massachusetts Supreme Court issued a similar ruling in Licata v. GGNSC Malden Dexter LLC, having earlier transferred that case from the intermediate appellate court on its own initiative. The son's signature as "responsible party" on the contract did not change the outcome:
"[E]ven assuming that Salvatore [the son] qualified as a responsible party for purposes of giving informed consent to medical treatment, this role did not empower him to sign an arbitration agreement on [his mother] Rita's behalf."
Further, the court rejected the nursing home's argument in the Licata case that theories of "ratification," "third-party beneficiary" or "equitable estoppel" compelled arbitration of the personal injury claim, concluding that "no inequity results from denying enforcement of the arbitration agreement."
These decisions show the importance both of statutory authority and careful drafting of documents appointing agents for those wishing "freedom" from mandatory arbitration (hence, the Liberty Bell, courtesy of photographer Bev Sykes). My first reading of these two decisions suggests that attorneys in Massachusetts and states with similar health care decision-making laws will still customize the language of POAs for "general agents" acting under powers of attorney, to make it clear that any grant of general authority does not include authority to bind the principal to mandatory arbitration of nursing home disputes, even if the agent also has authority to make health care decisions. Other thoughts from our readers?
Tuesday, December 31, 2013
The Consumer Financial Protection Bureau (CFPB) has issued preliminary results on its evaluation of "pre-dispute arbitration provisions," used in many contracts for consumer financial service products, such as credit cards, checking accounts or pay-day loans. Congress commanded the study as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010.
Consumers probably end up viewing these clauses as triggering "mandatory" arbitration, in that consumers typically "consent" by signing agreements without any real understanding of the implications. The report summarizes both pro and con arguments on the use of pre-dispute arbitration provisions.
The study makes strong use of academic research, including recent work by Peter Rutledge (University of Georgia Law) and Christopher Drahozal (Kansas Law), Jean Sternlight (UNLV Law), and my own colleague and friend, Nancy Welsh (Penn State Law).
Much of the CFPB report focuses on what it calls the "front end" of arbitration issues, identifying a host of arbitration-related factors addressed in corporate contracts, such as opt-out rights, arbitrator selection, limits on recoverable damages, time limits for claims, and allocation of costs.
Reading between the lines of the report's preliminary findings, it seems to me to support the view that companies use arbitration as a procedural barrier to consumer challenges, including class actions. At the same time, statistics cited in the report suggest that companies may dispense with arbitration when pursuing collection from defaulting consumers, instead filing suits in small claims courts (the CFPB will address federal and other state court claims in the future).
This seems consistent with what I observed during my 10+ years with Penn State Law's Elder Protection Clinic, where we frequently represented older clients on debt claims. Many of these claims were "old" debts, where our clients had been making minimum payments for years, but were no longer able to keep up with the payments after retirement, particularly if also confronted with new debt from medical crises. I don't recall any of the collection cases being initiated by arbitration. By filing in court, the companies seemed to hope for a low-cost route to default judgments.
The New York Times cites the CFPB study in a recent editorial, calling for a change in laws to permit consumers an effective legal tool when needed to challenge certain corporate practices, pointing out that:
"In disputes over financial products — involving, say, excessive fees, inflated loan balances, faulty credit reporting, or fraud and discrimination — the damages at stake may be significant for an individual but not enough to warrant the cost of a legal challenge unless grouped in a class action. Forced arbitration also fosters abuse, since there is no check on wrongdoing that takes small amounts of money from potentially millions of customers."
The CFPB notes that its December 2013 findings will be followed by a more complete report, expected in 2014.
Friday, December 13, 2013
In Estate of Marusich, 2013 WL 6450238, decided December 10, 2013, the Wyoming Supreme Court ruled the state could recover costs for Medicaid from the community spouse's estate, where the property in question, the marital home, had been owned as tenants by the entirety at the death of the Medicaid receipient (husband). Key points include:
- Wyoming has adopted "expanded" estate recovery to include any real property in which a care-receiving individual had any legal title or interest at time of death;
- Home was titled to the individuals as "husband and wife," which created a "tenancy by the entirety" under state law;
- Husband received Medicaid benefits during his nursing home stay, until his death in 2005;
- Wife continued to live in the marital home until her death, intestate, in 2012.
The Court distinguished rulings in Minnesota and Tennessee, where the agencies were barred from applying expanded estate recovery in cases where the care-receiving spouse's interest in marital property was transferred by the Medicaid recipient into the sole name of his or her community spouse before death:
"While Barg [752 N.W.2d 52 (Minn. 2008)] and Smith [2006 WL 2114250 (Tenn. Ct. App. 2006)] ultimately reached a result consistent with that sought by the Marusich Estate, they do not support the argument that the house should not be available for recovery. In fact, those cases compel the opposite conclusion. Given Mr. Marusich owned an interest in the house when he died (unlike the reciepient spouses in Barg and Smith), it was within the Department's authority to file a lien even though his interest passed by operaton of law to Mrs. Marusich upon his death."
The outcome in Wyoming points to the significance of expanded Medicaid estate recovery, and the potential importance of estate "re-planning" once the first spouse enters into Medicaid-paid care.
Thursday, December 12, 2013
Pennsylvania's Department of Aging (PDA) has made public a long-awaited report on "The State of Guardianships in Pennsylvania." PDA commissioned the Center for Advocacy for the Rights and Interests of the Elderly (CARIE), a nonprofit organization based in Philadelphia, to identify, research and analyze current approaches to guardianship around the state. Using a multi-faceted research design to collect information on current practices from a host of sources, CARIE was able to tackle some of the toughest systemic questions, including:
- How thoroughly are the rights of the Alleged Incompetent Person (AIP) protected when AIPs do not have legal representation 25% of the time, and the judges are inconsistent in appointment of counsel or insisting that AIP have counsel?
- How responsive is the state's guardianship system to ensuring the AIP's right to due process when in only 1% of the cases was the hearing for a guardianship held at the AIP's location?
How thorough is the guardianship hearing when the average hearing is only 34 minutes for uncontested hearings?
- How much is invested in the guardianship systems when the majority of Area Agencies on Aging (AAA) staff that work with guardianship receive very little training specifically focusing on guardianship?
- How transparent is the guardianship process when only 57% of lawyers indicated that the entire guardianship hearing was held on the record?
- Are all avenues to alternative guardianship explored when 42% of lawyers indicated they had not been asked by the court to demonstrate they had explored alternatives to guardianship?
- Has guardianship become a defacto way to move someone into a nursing home when 42% of consumers are living in a nursing home 90 days after a guardianship appointment when the AAA is involved?
CARIE has made specific recommendations for changes to improve the Pennsylvania system (systems?) and thereby better protect the rights of vulnerable individuals. PDA seems to have made the decision not to publish CARIE's recommendations as part of the report, so we'll have to wait for a separate release. But, I suspect readers will get a strong idea of the recommendations from reading the report on CARIE's fact investigation. Feel free to add your reactions and comments below.
Thanks to Attorney Alissa Halperin, a co-director for the CARIE research team, for alerting us to the public release of the study.
Thursday, December 5, 2013
Calling it a "matter of first impression," an intermediate appellate court in Pennsylvania has ruled that a woman's renunciation of her interest in a dissolved marital support trust was a transfer "for less than fair consideration," thus triggering ineligibility when she entered a nursing home and applied for Medicaid.
As reported in Schell v. Pa. Department of Public Welfare, decided December 4, 2013 by the Pennsylvania Commonwealth Court, a testamentary trust was dissolved in 2009, leaving approximately $300,000 to be distributed to the settlor's widow. The widow formally renounced her interest in the distribution, permitting the sum to be divided equally between the couple's two children, one of whom was disabled. Two years later, in 2011, the widow entered a nursing home and applied for Medical Assistance.
While DPW accepted the widow's "hardship" argument regarding the half distributed to the disabled daughter, the Court upheld DPW's challenge to the distribution of the other half to the son. The Court rejected the widow's argument that the penalty period could not apply to a trust created more than five years before her nursing home admission, on the ground that the key event was termination of the trust within the Medicaid lookback window:
"Once the trust was dissolved, Petitioner became entitled to any remaining income and principal therein. This income and principal was available for Petitioner to use for her support, but she made an affirmative decision not to receive the same, without any good cause explanation for so doing. . . . Upon Petitioner’s renunciation, the trustee distributed half of the remaining income and principal from the trust, $151,231.76, to her son. Petitioner received nothing in return, and, thus, the [Bureau of Hearings and Appeals] properly concluded that this transfer was for less than fair market value, thereby resulting in the imposition of a penalty period of 582 days."
Saturday, November 23, 2013
Residents of a nursing home in Pennsylvania overcame an interesting challenge to their votes during a November 5 election, but it took a court hearing to get that result. State Court Judge Joseph Cronin in Delaware County, outside of Philadelphia, ruled in favor of the seniors on November 20.
Background: A Pennsylvania poll-watcher challenged a number of absentee ballots cast by residents of a nursing home in the November 5 election, reportedly on the grounds that "various types of handwriting" appeared on the voters' applications to vote by absentee ballot or on the envelopes they used to cast the absentee ballots. Of course, absentee ballots may be important for individuals unable to travel easily to the polls.
Under Pennsylvania law, voters are entitled to notice and an opportunity to contest the challenge before the county Election Board. However, apparently none of the residents at Broomall Rehabilitation and Nursing Center were notified of the November 11 Election Board hearing, although a "subpoena was delivered to a member of the nursing home staff by a Pennsylvania constable," according to the Daily Times. The Election Board then ruled 2 to 1 in favor of the Republican poll-watcher's challenge on ballots by 61 of 67 residents of the nursing home, with the vote splitting along party lines.
Ultimately, 14 of the residents then retained an attorney and filed a formal court appeal, resulting in the ruling in their favor. They did not, however, testify or even appear at the court hearing, which apparently focused on procedural errors in the ballot challenge.
I would like to think that someone on the defense side of the case had a moment of pause, when they learned the judge assigned to the case was a senior judge. In my experience, senior judges are not terribly receptive to arguments that appear to presume a lack of mental capacity based on age. On the other hand, I suppose one could also ask why ALL of the residents who cast challenged absentee ballots were not a part of the court appeal?
Thursday, November 21, 2013
I sometimes try to hold a provocative or interesting case until the last session of an Elder Class. This semester I asked the students to read:
- John Payne's recent article on "Ethical and Public Policy Considerations Related to Medicaid Planning," and
- Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2012)
The combo seemed to work well, giving students a chance to revisit a number of issues from the semester. For, example, we talked about the role of an attorney in advising family members. In the Irving case, did either the daughter or the son have legal advice (the same lawyer?) regarding the roles they took when their mother was admitted to the nursing home? If anyone would like my outline of questions for students on these two documents, feel free to email me.
And if any of you have a great way to end the semester in either Elder Law or Wills, Trusts & Estates, please share!
Thursday, November 14, 2013
Nursing homes, contracts, agents and payment demands. I'm seeing interesting cases and laws coming out of Connecticut. The topic is whether (and when) liability arises for an individual, often a son or daughter, who admits a parent to a nursing home, if a gap arises in payment for that parent's care. Here are a few highlights from the Nutmeg State:
- In early 2013, the Supreme Court of Connecticut upheld a judgment in favor of a defendant/daughter, who was sued for breach of contract by her father's nursing home. The judgment included attorneys' fees for daughter under a state law governing the rights of successful consumers in disputes with commercial parties. The daughter had signed documents at the time of her father's admission, as a condition of admission. The nursing home's contract attempted to establish contractual obligation for the signer as a responsible party "if the responsible party has control or access to the patient/resident's income and/or assets, including but not limited to making prompt payment for care and services...." Under the court's ruling, however, this clause did not bind the daughter to pay for her father's care, as she was neither an appointed agent under a power of attorney, nor a court-appointed guardian. Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013).
- Digging deeper into the Aaron Manor case, I looked to see why there was a payment gap. What wasn't clear from the Aaron Manor decision by the Connecticut Supreme Court, was the potential importance of the role played by another adult, the father's son. As reported in greater detail at the intermediate appellate level, the son (and thus also brother to the daughter/defendant discussed above) did have a power of attorney and control over the father's accounts, had not signed the admissions contract, and had made transfers (including gifts) to himself and his sister from those accounts. Eligibility for Medicaid was not discussed in the intermediate court's case history. My best guess is the son declined to pay the nursing home bills for dad (and the history suggests a gap of a couple of months may have been connected to terms of some private insurance, so perhaps there was a separate insurance coverage dispute), but the son wasn't sued because he hadn't signed that nursing home contract. Connecticut has a filial support law, by the way, but it is not comparable to Pennsylvania's filial law. Aaron Manor, Inc. v. Irving, 12 A.3d 584 (Conn. App. 2011).
- Here is where things get interesting (spicier?) -- at the Legislature. Effective on October 1, 2013, the Connecticut Legislature amended state law to permit a nursing home to collect a debt for unpaid care for a resident from third parties, if that resident has been denied Medicaid because of one or more transfers by or to those parties, causing ineligibility. The Connecticut law provides that nursing home collection suits may be filed against the "transferor" or the "transferee." A successful nursing home may also seek attorneys' fees. Sections 128-130 of Connecticut Public Act 13-234.
It looks like the statutory change is a direct response to the type of facts represented in the Aaron Manor case, and would give nursing homes potent options for the future, as the son was a transferor (and transferee) and the daughter was a transferee. I have written about liability issues arising out of nursing home contracts, including discussion of an earlier Connecticut case, Sunrise Healthcare Corp. v. Azarigian, 821 A.2d 835 (Conn. App. 2003), a case that was distinguished by the courts in analyzing Aaron Manor. (In fact, the last few years I've spent so much time reading contracts and cases connected to financial responsibility for long-term care, that I finally volunteered to add Contract Law to my teaching package.) No secret that I find this area to be a fascinating juncture of substantive concepts, requiring analysis of health care policy, family law, contract law, agency law and elder law (which includes, of course, Medicaid law).
How did the Legislative change come about? According to a report by Wiggin & Dana, a Connecticut law firm representing providers, the changes to Connecticut law "grew out of a multiyear effort by LeadingAge Connecticut to convince the General Assembly to address the need to assist nursing homes facing bad debts. . . . Although the elder law bar and legal services advocates initially opposed the legislation, the Co-Chairs of the General Assembly's Human Services Committee . . . led a successful mediation process resulting in compromise language that received the support of all parties."
In writing about the new Connecticut Law, ElderLawGuy Jeff Marshall comments that this may be part of a "trend to make perceived 'wrongdoers' . . . liable for unpaid nursing home costs." Further he predicts such an approach, which is an alternative to liability under filial support laws, could "spread to other states."
See also the Elder Law Prof Blog's earlier post: "New Hampshire Establishes Liability for Agents Who Fail to File Timely Medicaid Applications."
Feel free to comment below on your views on this potential trend.
Sunday, November 10, 2013
So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers. The bar may arise by common law, often rooted in equity, or statute.
As Harvard Law Professor Robert Sitkoff summarizes well in his 9th edition (Dukeminier) of Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."
However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason.
For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions.
The Washington case involved allegations made by three surviving children against their father's second wife. The father was in his late eighties when he married the younger woman, who was younger by fifty years. The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death. See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).
In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults. Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).
And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?"
Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.
November 10, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Friday, October 25, 2013
This semester in my course on Wills, Trusts & Estates we have talked about the trend in modern cases to resolve conflicts over wills and trusts by attempting to respect the "intent" of the testator or settlor, even when imperfectly expressed in a written document. But, there are often lines beyond which courts will not go to supply missing words or resolve ambiguity.
In Estate of George Zeevering, decided by an intermediate appellate court in Pennsylvania on September 26, 2013, the court was facing an incomplete do-it-yourself will. The testator had not consulted with a lawyer. He attempted to make specific bequests. One bequest was deemed a "nullity" because the property was already titled in the names of the decedent and a son as joint tenants with right of survivorship. The father also stated that the "failure of this will to provide any distribution" to three of his daughters was "intentional."
However, there was no provision made in the will for any residuary and the residuary estate, after payments of debts, totaled over $200,000.
The appellate court upheld the distribution of the residuary to all of the children:
"[I]t was proper for the orphans' court to conclude that where the intent of the testator is not clear from the will, where the will fails to dispose of a decdent's entire estate, and where the will fails to provide a residuary clause, the residuary estate is to be distributed under intestacy laws."
Wednesday, October 23, 2013
Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.
Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals. For a number of years, states have been struggling to balance utility against risk.
In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts. Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute. Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties. The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.
Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends.
Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA), which superseded prior uniform law proposals. The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:
"The UPOAA seeks to preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool for financial abuse of incapacitated individuals. It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."
Adoption of the UPOAA has been fairly slow. As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA.
In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption. In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.
Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice Debra Todd of the Pennsylvania Supreme Court.
In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties.
The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons."
By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney." Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals. I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse. Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent. Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.
October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)