Friday, August 28, 2015
Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father. Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding.
The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:
"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."
Thursday, August 27, 2015
Justice in Aging offers a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.
The papers include:
- Paper 1: Issue Overview
- Paper 2: A Review of Dementia Training Standards across Health Care Settings
- Paper 3: A Review of Dementia Training Standards across Professional Licensure
- Paper 4: Dementia Training Standards for First Responders, Protective Services, and Ombuds
- Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training
To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home. Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards. The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel.
If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.
August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Monday, August 24, 2015
In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians. The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator.
On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians. In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference.
Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian. While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice. Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .
Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian.
Tuesday, August 18, 2015
An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy. The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California. UPDATE: link to Order dated August 14, 2015.
In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years. Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE). With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy. The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.
Insurers understandably prefer not to pay claims if they can avoid doing so. In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit."
On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.
August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, August 14, 2015
In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:
Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.
For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.
August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, August 13, 2015
Earlier this summer, a North Carolina appellate court reversed a trial court's finding that "membership fees" tied to condominium purchases in a retirement community were "unconscionable." In a class action suit filed by residents against Cedars of Chapel Hill LLC., this summer's ruling permits the defendant company to continue to market and sell its retirement condos as "fee simple" units in combination with "continuing care member" contracts, although the court also remanded for a jury trial before the lower court.
In a highly technical ruling that examined state real estate transfer fee rules, the North Carolina's marketable title act, and arguments under the common law about unequal bargaining power, the appellate court rejected summary judgment in favor of the residents. The court addressed allegations of both procedural and substantive unconscionability in the contracting process. The court explained in part:
Substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms.” … The terms must be “so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.” Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). Plaintiffs, in raising this issue, contended that the fees in question were “exorbitantly high,” that the documents at issue were “decidedly one-sided in favor of the Company,” and that plaintiffs lacked “ability ... to negotiate any of the terms of the covenants and conditions in question in this case.” Plaintiffs further noted that the market for CCRCs in Chapel Hill is very small, leaving few alternatives.
…[W]e find plaintiffs' arguments unavailing. We recently held that “the times in which consumer contracts were anything other than adhesive are long past.” Torrence v. Nationwide Budget Fin., ––– N.C.App. ––––, ––––, 753 S.E.2d 802, 812 (quoting AT&T Mobility LLC v. Concepcion, –––U.S. ––––, ––––, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742, 755 (2011)), review denied, cert. denied, 367 N.C. 505, 759 S.E.2d 88 (2014). The mere fact that plaintiffs lacked the ability to negotiate contract terms does not create substantive unconscionability, nor does the fact that defendants were among the only providers of CCRC facilities. We hold that plaintiffs did not adequately demonstrate unconscionability as a matter of law, and that a genuine issue of material fact existed as to unconscionability, which precluded summary judgment.
For more of this ruling, see Wilner v. Cedars of Chapel Hill LLC., 773 S.E 2d. 333 (N.C. Ct. App., 2015).
For reactions from the parties' representatives, see NC Appeals Court Ruling Favors Cedars of Chapel Hill Condo Fees.
For an additional, interesting discussion of business perspectives on retirement developer control, written prior to the most recent appellate court ruling, see Two Pitfalls of Leveraging Developer Influence, from a North Carolina law firm blog.
This case -- revealing the range of complexities in contracts for senior housing and services -- is another example of why I added "Contracts" law to my teaching package, with elder law!
Tuesday, August 11, 2015
Avenging angels or unholy alliance? A lawsuit filed by the New Mexico Attorney General in December 2014 against Preferred Care Partners Management Group, a large, privately held management company operating nursing homes in New Mexico and nationally, raises interesting questions about whether AGs should be teaming with private lawyers to pursue cases of alleged malpractice, abuse or fraud affecting consumers. The Plano, Texas-based defendant asserts that "lobbying" of state attorney generals by private firms to pursue questionable claims is improper, pointing to campaign contributions paid by law firms or individual lawyers, as well as contingent fee arrangements that defendants argue reduce the States' accountability.
Current Attorney General Hector Balderas blasted back at the company through a spokesman. “Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he said. “Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”
Currently, the New Mexico case is in federal court, following the defendant's removal from the original filing in state court. The law suit -- and the issue of private/public partnerships in pursuing claims on behalf of consumers and/or taxpayers -- is generating a lot of attention in the business world. Recent coverage includes linked news stories by the New York Times, the Albuquerque Journal, and McKnight's LTC News.
August 11, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink
Friday, August 7, 2015
In the wake of devastating reports about poor accountability following inspections of nursing homes in Pennsylvania under a previous governor, plus a new civil lawsuit filed by the Pennsylvania Attorney General's office, the current Pennsylvania Secretary of Health has announced a state task force to study certain issues.
According to the state press release, the task force "will be charged with identifying ways the department can advance quality improvement in Pennsylvania's long-term care facilities. The goal is to review current regulations and identify areas that the department may improve to ensure that nursing homes are operating at the highest level regarding the quality and safety of their residents."'
The Secretary's office indicates that in addition to "members of the Governor's Office, the secretaries of the Pennsylvania departments of Aging, Human Services, and State," appointed task force members include:Jaqueline Zinn, PhD - Temple University (Business School)
Mary Naylor, PhD, FAAN, RN - University of Pennsylvania (Nursing, Gerontology)
Steven Handler, MD - University of Pittsburgh (Medical School, Biometric Informatics)
Rachel Werner, MD, PhD - University of Pennsylvania (Medical School, Quality of Care)
Dana Mukamel, PhD – University of California, Irvine (Public Health, Quality of Care)
David Grabowski PhD - Harvard University (Medical School, Health Care Policy)
Barbara Bowers RN, PhD, FAAN - University of Wisconsin (Institute of Aging, Long Term Care)
Pennsylvania State Senator Pat Vance
Pennsylvania State Representative Mathew Baker
On the positive side, it is good to see non-Pennsylvanians appointed to the team, all with excellent credentials. Perhaps on the less positive side, it seems to be a very large team, made up mostly of very prominent but busy "volunteers," two factors which in my experience can reduce efficiency.
For news accounts of the potential political factors that may be play in this recent history, see here and related articles linked below.
August 7, 2015 in Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink
Thursday, July 30, 2015
As detailed in new stories in Southern California media, an important suit by University of California San Diego (UCSD) against University of Southern California (USC) highlights a battle between public and private research enterprises. Control over millions of dollars is stake for Alzheimer's-related research. From the San Diego Union-Tribune in a Sunday feature article by Larry Gordon, Gary Robbins and Bradley Fikes:
In the lawsuit, U.C. San Diego alleges that USC, [Alzheimer's researcher Paul] Aisen and eight colleagues conspired to take research data involving more than 1,000 patients and other assets, including an estimated $100 million in federal and private funding to a new Alzheimer's study center in the San Diego Area. Aisen and USC deny any wrongdoing and contend that UC San Diego is trying to inhibit the freedom to move jobs and is threatening the data's security.
A Superior Court judge in San Diego last week denied USC's request to block UC San Diego's access to that data.
Richard Seligman, the associate vice president for research administration at Caltech who has more than four decades of experience dealing with grants, said he had never heard of such a lawsuit even though competition for grants and noted faculty has gotten more fierce.
Stakeholders interested in the outcome of the research are reported to be taking note of the suit, with Mary Carrillo, the chief science officer for the Alzheimer's Association quoted as saying the association wants a "speedy resolution" of the lawsuit to keep research going forward.
Left in an uncomfortable middle ground are the National Institutes of Health and its subsidiary National Institute on Aging, which provides about $11 million per year to the UC Alzheimer's Center. While confirming that UC San Diego still holds that grant, officials at those agencies said they must approve whether funding like that stays put or moves to another school with a principal investigator like Aisen.
For additional background on the lawsuit, see a related Los Angeles Times piece here. Reporters from the Los Angeles Times and the San Diego Union-Tribune have collaborated on these stories.
On Friday, July 24, a California trial court ruled that the key research data must be returned to UCSD and therefore does not go "with" the faculty member, Aisen, recruited away from San Diego by USC. Details here.
As further evidence of the battle for primacy in southern California medical research, USC and UCSD have each courted the La Jolla Institute for Allergy and Immunology, with University of California-San Diego energing as the winning suitor for "affiliation." Details here.
Thursday, July 23, 2015
As we have posted in the past, serious concerns have been raised about the role of judicial appointment and review power over adult guardianships in Las Vegas, Clark County, Nevada. In June, the Nevada Supreme Court appointed a 23-member commission to review and recommend any changes to existing practices; the proceedings before the panel began in July.
The concerns have largely focused on the use of a "private" guardianship company, with judicial oversight alleged to be minimal, perhaps connected to the fact that the company's founder was previously a county administrator and also the former "public guardian" for that county. Families raised challenges in certain instances to the allocation of financial resources for alleged incapacitated persons, both seniors and other adults with disabilities, including allegedly improper use of the ward's financial resources to pay high administrative fees and attorneys fees. The individual who is a target of family ire, Jared Shafer, has vehemently denied all allegations.
The commission's recent hearings have been "fiery" and the Clark County area news media are covering the proceedings in detail. Here are links to recent news coverage, beginning with an editorial that appeared this week in the Las Vegas Journal-Review:
- LasVegasReviewJournal - Editorial-Clark County Adult Guardianship Program Must Better Protect Wards 7/21/15
Thursday, July 16, 2015
Probably the best bang for your CLE buck in Pennsylvania comes from the two-day Elder Law Institute hosted each summer by the Pennsylvania Bar Institute. This year the 18th annual event is on July 23 & 24 in Harrisburg.
- "The Year in Review" with attorneys Marielle Hazen and Robert Clofine sharing duties to report on key legislative, regulatory and judicial developments from the last 12 months;
- How to "maximize" eligibility for home and community based services (Steve Feldman and Pam Walz);
- Cross disciplinary discussions of end-of-life care with medical professionals and hospice providers;
- LTC "provider" perspectives (Kimber Latsha and Jacqueline Shafer);
- Latest on proposals to change Veterans' Pension Benefits (Dennis Pappas);
- Implementation of the Pa Supreme Court's Elder Law Task Force Recommendations (Judges Lois Murphy, Paula Ott, Sheila Woods-Skipper & Christin Hamel);
- A closing session opportunity, "Let's Ask the Department of Human Services Counsel" (with Addie Abelson, Mike Newell & Lesley Oakes)
There is still time to registration (you can attend one or both days; lunches are included and there is a reception the first evening).
I think this is the first year I have missed this key opportunity for networking and updates; but I'm sending my research assistant!
July 16, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, Property Management, Social Security, State Cases, State Statutes/Regulations, Veterans | Permalink | Comments (0)
Wednesday, July 15, 2015
Community Legal Services of Philadelphia (CLS) recently issued an important report, examining statistics on complaints and enforcement actions under the purview of Pennsylvania's Department of Health, the chief regulatory body for nursing homes. To put it bluntly, the regulators are getting a failing grade here, with a new Governor (and an uncooperative Legislature on funding issues) facing the need for action. From the executive summary:
The Pennsylvania Department of Health (DOH) has been failing to protect elderly and disabled nursing home residents. Community Legal Services of Philadelphia (CLS) regularly advocates on behalf of nursing home residents, representing them in matters relating to the preservation and protection of their rights. Over the past several years, under the previous governor’s administration, CLS has witnessed DOH significantly decrease its enforcement of nursing home regulations and patient protections. In an analysis of DOH nursing home investigations and inspections that occurred in Philadelphia from 2012-2014, CLS has found that DOH’s conduct has put elderly and disabled Pennsylvanians at risk of physical harm or death.
During this time period, DOH dismissed an extraordinary number of complaints against nursing homes, failed to properly follow up when a violation was found, mischaracterized harm against patients, and dramatically decreased its penalties against nursing homes. Unfortunately, DOH’s failures have not only placed residents at risk, but they have also resulted in inaccurate publicly available information that forces potential residents and their families to make major life decisions without all of the important facts. Pennsylvania must fix this crisis and ensure the safety of elderly and disabled nursing home residents.
The CLS authors make recommendations for change, including a commitment to "better transparency to the public regarding investigations and characterization of harm."
Friday, July 10, 2015
Louisiana Governor Bobby Jindal, one of (now many) candidates for the Republican nomination for President, has been making a fair amount of press of late, for his positions on so-called medical marijuana, Common Core education standards, and how his state will handle same-sex marriage. Lower on the radar screen, however, was his signing of Act 260, an interesting package of legal changes affecting obligations between various family members.
One of these changes was to adopt a new provision affecting the obligations of "ascendants and descendants" to provide "basic necessities of life" for family members "in need." In other words, filial support.
Louisiana already had a provision, Section 229, providing that "children are bound to maintain their father and mother and other ascendants who are in need." The new provision continues this statutory obligation, but makes enforcement "personal" only. The substitute provision was signed into law on June 29 and becomes effective on January 1, 2016. New Article 237 of Act 260 provides:
Descendants are bound to provide the basic necessities of life to their ascendants who are in need, upon proof of inability to obtain these necessities by other means or from other sources, and ascendants are likewise bound to provide for their needy descendants, this obligation being reciprocal.
This obligation is strictly personal and is limited to the basic necessities of food, clothing, shelter, and health care.
This obligation is owed by descendants and ascendants in the order of their degree of relationship to the obligee and is joint and divisible among obligors. Nevertheless, if the obligee is married, the obligation of support owed by his descendants and ascendants is secondary to the obligation owed by his spouse.
Official comments explaining the revisions emphasize that the necessities obligation kicks in only when the needy family member is unable to obtain necessities "by other means" or from "other sources," thus signaling any filial support obligation is secondary to the individual's eligibility for public assistance or other welfare benefits. Further "for the first time" Louisiana law "provides a ranking of those descendants and ascendants who owe this reciprocal, lifetime obligation."
The commentary explains that the revision makes the obligation "strictly personal," and there it precludes enforcement by "a third person." Thus, it would appear that unlike in Pennsylvania (or Germany?) nursing homes and the state may not use these statutes in order to sue family members to collect necessities for indigent elders.
According to the comments, the obligation is also not "heritable." This appears to reflect a Louisiana Court of Appeals decision from 2010, In re Succession of Elie,denying a mother's claims for funds from a deceased son's estate brought under former Section 229.
Friday, July 3, 2015
On July 1, 2015, Pennsylvania's Attorney General filed a complaint in the Commonwealth Court against Golden Gate National Senior Care LLC (GGNSC) which manages and operates Golden Living Centers nationally. The AG's suit focuses on 14 facilities in Pennsylvania. From the AG's press statement:
The legal action asserts Golden Living violated the Unfair Trade Practices and Consumer Protection Law by deceiving consumers through its marketing practices.
The company advertised it would keep its residents clean and comfortable while providing food and water at any time. But its facilities were understaffed, leaving residents thirsty, hungry, dirty, unkempt and sometimes unable to summon anyone to help meet their most basic needs, such as going to the bathroom, the legal action asserts.
According to the AG's office, evidence comes from residents' family members and former employees of Golden Living, including certified nursing assistants. The allegations focus on an alleged "widespread pattern of understaffing and omitted care."
Further, the AG makes the following specific allegations:
- Continent residents left in diapers because they were unable to obtain assistance going to the bathroom.
- Incontinent residents left in soiled diapers, in their own feces or urine, for extended periods of time.
- Residents at risk for bedsores from not being turned every two hours as required.
- Residents not receiving range of motion exercises.
- Residents not receiving showers or other hygiene services as required.
- Residents being woken at 5 a.m. or earlier to be washed and dressed for the day.
- Residents not being timely dressed in order to attend their meals.
- Residents not being escorted to the dining hall and sometimes missing meals entirely.
- Long waits for responses to call bells or no responses at all.
- Staff, under the direction of management or fear of management, falsifying records to indicate residents received services when in fact they did not.
- Improved staffing when state inspections occurred, leading to deceit about the true conditions at the facility.
- The investigation also included a review of staffing levels self-reported by Golden Living facilities and deficiencies cited in surveys conducted by the state Department of Health.
According to one news source, Golden Living responded to the suit with a statement expressing the company's confidence that the "claims made by the Attorney General are baseless and wholly without merit," and further alleging the suit is the "unfortunate result of Kathleen Kane's inappropriate and questionable relationship with a Washington D.C.-based plaintiff's firm that preys on legitimate businesses and is paid by contingency fees." (For those of you not privy to the local news on Pennsylvania politics generally and AG Kathleen Kane specifically, I think it is fair to say that the press frequently refers to her as the "embattled AG." She first took office in January 2013).
The Pennsylvania AG's suit comes on the heels of a broader report released in June by Community Legal Services of Philadelphia, asserting that from 2012 through 2014 the Pennsylvania Department of Health under former Governor Corbett's administration, failed significantly to conduct proper investigation of complaints about a large number of nursing homes (not limited to Golden Living) and failed to enforce existing regulations designed to protect residents.
For Golden Living, allegations are not limited to Pennsylvania. For example, in June 2015, claims about chronic understaffing of 12 Golden Living Center nursing homes in Arkansas were certified to be litigated as a class action.
Hat tip to Douglas Roeder, Esq., for bringing the latest Pennsylvania AG's suit to my attention. Last month I reported on the A.G.'s suit for unfair trade practices filed against a law firm that was alleged to be improperly using Pennsylvania's filial support law as a basis for collection demands against family members of the debtor.
July 3, 2015 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, June 30, 2015
On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients. In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man. It was alleged she used client funds to pay office, payroll and personal expenses.
The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August. According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.
Monday, June 29, 2015
California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional
On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR). Lots of interesting and important issues here, including:
- the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
- the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8, is unconstitutional, both facially and as applied;
- the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.
The 44 page opinion concludes:
"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court. The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate.... The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling. The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death. A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."
Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen, who brought the action on behalf of CNHR and several nursing home residents. Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.
June 29, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink
Sunday, June 28, 2015
In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care. The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both. Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.
The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards. The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:
In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result. The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.
Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony.
As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.
In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues. For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.
Friday, June 26, 2015
On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit. In Javallena v. State, the 4th DCA ruled:
The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.
On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.
"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).
The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million. No word on the status of any appeal on the separate conviction of Javallena's wife.
June 26, 2015 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, June 19, 2015
The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012).
The impressive list of contributors includes:
- Naomi Cahn (George Washington Law), Continuity and Caregiving: Comments on Someday All This Will Be Yours
- Mary Anne Case (University of Chicago Law), When Someday is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid
- Nina A. Kohn (Syracuse Law), The Nasty Business of Aging
- Dorothy E. Roberts (University of Pennsylvania Law), Race, Care Work, and the Private Law of Inheritance
Plus, historian Hendrik Hartog provides his own commentary and response!
- Hendrik Hartog (Princeton), Somedays I Have Second Thoughts.
Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future.
The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.
June 19, 2015 in Books, Cognitive Impairment, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, June 17, 2015
In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes. In Bounds v. Superior Court, the appellate court set the stage for the important ruling:
Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....
As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c).