Friday, November 21, 2014
On November 19, attorneys representing families and the Commonwealth of Pennsylvania argued consolidated cases before a panel of the Third Circuit Court of Appeals, involving use of short-term annuities in connection with applications for Medicaid-funded care. The argument follows appeals from a January 2014 decision on summary judgment motions by the Western District of Pennsylvania in the case of Zahner et al. v. Commonwealth of Pennsylvania.
A key issue on appeal is whether use of "shorter" term annuities is permitted by the language of federal Medicaid statutes referring to actuarially-sound annuities, or whether such use automatically constitutes a transfer of assets for less than fair value, and thus is treated as a prohibited gift. HCFA Transmittal 64 is the subject of much of the very technical debate.
The jurists on the panel are Judge Theodore McKee (the male judge's voice on the recording), Judge Marjorie Rendell, and Senior Judge Dolores Sloviter (the softer voice on the recording). Interestingly, rather early in the argument, at least two of the judges interject to make the observation that "there is nothing wrong with Medicaid planning, per se," noting, rather, that the issue is the extent to which specific planning approaches have been directly addressed by federal law.
Listening to the oral argument in this case provides an opportunity for students in advanced legal studies on asset planning to consider cutting edge legal issues and policy concerns. The argument is also an opportunity for even first-year law students to discuss argument techniques, and to consider what does or does not work well with judges (and vice versa). It was a "hot" bench and there was a lot of interruption from both sides.
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
Sunday, November 16, 2014
In the October issue of Bifocal, the ABA Commission on Law and Aging journal, the lead article examine's the history of Maine's Improvident Transfer of Title Act, 33 M.R.S.A. Section 1021 et seq., enacted in 1988 in an effort to better protect victims of undue influence and financial exploitation. As the author, Maine elder law attorney Sally Wagley, explains,
"For a period of time, the [proposed] bill continued to be unpopular with some sectors of the bar. This was ameliorated to some extent by elder law attorneys collaborating with real property lawyers to successfully propose a number of appropriate amendments related to transfers of real estate: (1) a provision which states that nothing in the Act affects the right, title, and interest of good faith purchasers, mortgagees, holders of security interests, or other third parties who obtain an interest in the transferred property for value after its transfer from the elderly dependent person; and (2) provisions affecting title practices, stating that the examiners were not required to inquire as to the age of the transferor and whether he or she had independent representation."
Has the law been useful in Maine? Wagley concludes that in spite of continuing challenges, including the lack of resources to pursue claims and the effect of delays in litigation on elderly victims, the law's presumption of "improvidence" arising from certain "uncounseled" transfers, has had a deterrent effect. She observes, "Knowledgeable attorneys now refer elders to outside counsel before assisting with a gift to family or others with whom the elder has a close relationship."
For more on Maine's law, see "Maine's Improvident Transfers Act: A Unique Approach to Protecting Exploited Elders."
Thursday, November 13, 2014
Does "Unlimited" Gifting Power in POA Protect the Agent from Criminal Liability for Self-Gifting? PA Appellate Court Says "No"
Following a nonjury trial in 2012, David Patton was convicted of 95 counts of statutory theft by unlawful taking, arising out of his use of a power of attorney (POA). The POA named him as agent for his 86 year-old aunt. At issue was more than $200,000. Patton appealed the conviction, alleging the POA that expressly granted him authority to make "limited or unlimited gifts," made it impossible for him to be held liable for theft by cashing checks and making withdrawals from his aunt's accounts for his personal use in 2008, 2009 and 2010. In September 2014, the Superior Court of Pennsylvania, an intermediate appellate court, issued a "nonprecedential" written opinion affirming the convictions, concluding:
"Simply stated, we reject Appellant's bold claim that the 'unlimited gift' provision in the power of attorney provided Appellant with a license to steal [his aunt's] assets and use all of her money for Appellant's own benefit. To the contrary, the gifting power was clearly subject to the condition [stated in a statutorily required affidavit signed by Appellant] that Appellant use the power 'for [his aunt's] benefit' - and Appellant clearly violated this condition when he took all of [his aunt's] money and used it as if it was his own. Therefore, since Appellant's actions were not authorized by the power of attorney, Appellant's sufficiency of the evidence claim necessarily fails."
In reaching this decision, the appellate court adopted the trial court's "meticulous" rulings as its own. In the trial court's final order, the judge rejected the defendant's testimony that he had no awareness or notice that using the POA to make the transfers in question was a crime. The trial judge wrote: "He did not need to be notified in writing to know that he could be charged with theft for taking for his own personal use over $200,000 of [his aunt's] savings, using some of it to go gambling in Erie and depriving her of sufficient funds to pay for her nursing home care in her old age."
An additional interesting, and perhaps confusing aspect of the case, is testimony by the attorney who drafted the POA.
When called by the defense to testify as "an expert" on powers of attorney, as well as a fact witness, the attorney testified he "always" included both "limited and unlimited" gifting authority in his POAs. He testified he explained to the aunt that the broadly-worded POA enabled the agent to "do anything that she could do." On direct examination, he testified the gifting language was "completely unconditional."
Monday, October 27, 2014
Last week I was part of a panel hosted by the National Continuing Care Residents' Association (NaCCRA) in Nashville, a component of the larger (much larger!) annual meeting of LeadingAge. The theme for the panel was "Resident Engagement in Continuing Care Life" and for my part of the panel, I used an interesting Third Circuit bankruptcy court decision, In re Lemington Home for the Aged, to discuss whether residents of financially troubled CCRCs should be treated as entitled to enforce specific fiduciary duties owed by the CCRC owners to creditors generally, even unsecured creditors, fiduciary duties that may give rise to a direct cause of action connected to "deepening insolvency."
Jennifer Young (pictured on the left), a CCRC resident, talked about what it is like to "be" an unsecured creditor in a CCRC's Chapter 11 bankruptcy court proceeding. Her explanation of how creditors' committees operate in bankruptcy court (including how they hire legal counsel and how that counsel is paid out of the Debtor's estate) was both practical and illuminating. The closing speaker on the panel was Jack Cumming (below left). Jack's has deep experience as an actuary and a CCRC resident. He noted the disconnect between the intentions of providers and the realities faced by residents and called for stronger accountability in investment of resident fees. I always come away from my time with Jack with lots to think about. Our moderator was NaCCRA president Daniel Seeger (right), from Pennswood Village in Pennsylvania.
In my final comments, I reminded our audience that even though our panel was focusing on "problems" with certain CCRC operations, including some multi-site facilities, many (indeed most) CCRCs are on sound financial footing, especially as occupancy numbers rebound in several regions of the country. Both panelists and audience members emphasized, however, that for CCRCs to be able to attract new residents, the responsibility of the CCRC industry must improve. For more on these financial points, go to NaCCRA's great educational website, that includes both text and videos, here.
Interestingly, during the LeadingAge programming that began on Saturday, October 18 and continued through October 22, I was hearing a lot about a potentially major shift in the long-term housing and service market. Some of the largest attendance was for deep-dive sessions on new service models for "Continuing Care at Home," sometimes shortened to CCAH or CCaH. CCAH is often seen as a way for more traditional CCRCs to broaden their client base, particularly in the face of occupancy challenges that began with the financial crisis of 2008-2010.
As a corollary of this observation about market change, one of the topics under debate within the leadership of LeadingAge is whether Continuing Care Retirement Communities need a new name, and I can see movement to adopt a name that aligns better with the larger menu of non-facility based services that many providers are seeking to offer.
Of course, as a law professor, I wonder what these market changes mean for oversight or regulation of new models. Not all states are keeping up with the changes in the Continuing Care industry, and name changes may complicate or obscure the most important regulatory questions.
Sunday, October 26, 2014
As regular readers of the Elder Law Prof Blog may recognize, I reside and work squarely in a zone where "filial support claims" are more than just theoretical propositions. Pennsylvania continues to be Ground Zero for modern complications arising from use of a Colonial era law that permits adult children to be held liable for the cost of an indigent parent's long-term care.
The latest example is In re Skinner, 2014 WL 5033258, decided by Bankruptcy Judge Madeline Coleman in the Eastern District of Pennsylvania on October 8, 2014.
The issue is whether one sibling can prevent another sibling from "discharging" any obligation to pay an assisted living facility for their mother's care. Both brothers were sued by the facility, resulting in a default judgment against one brother (Thomas) for $32,225, who in turn sought discharge of that debt in bankruptcy court. Brother William, probably facing the prospect of picking up the full tab for his defaulting brother, initiated an adversary proceeding, seeking to prevent the discharge. The court concludes that Brother William "lacks standing" to prevent Brother Thomas' discharge of the debt to the assisted living facility.
In dismissing Brother William's claim, the Bankruptcy Judge addresses both the Uniform Fraudulent Transfer Act and Pennsylvania's filial support law. According to the opinion, Brother William alleges that Thomas used a Power of Attorney executed by their mother in 2007, to access her bank accounts in a "scheme [with his wife] to use the Mother's assets, including her interest in long-term care benefits, to fund approximately $85,000 of their personal expenses." However, the court concludes that even accepting the truth of allegations that "suggest that the Mother was injured by the [Thomas'] conduct, that conduct was directed at the Mother and her property. The conduct was not directed at [William]." The Bankruptcy Court also rejected any theory of "derivative standing."
October 26, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 16, 2014
Following several months of investigation of complaints from older adults and their family members, in 2004 the Pennsylvania Attorney General announced a civil suit against an array of companies and individuals, including several attorneys, alleging their participation in a scheme to defraud through sales of unnecessary revocable living trusts and unsuitable annuities and insurance products. The alleged target was "senior citizens age 65 and older."
Ten years later, one of the Pennsylvania attorneys named in that original investigation, Brett B. Weinstein, has been disbarred. This particular disciplinary action has been a lo-o-o-o-ng-time coming.
Beginning as early as 2000, the Pennsylvania disciplinary board received complaints about Weinstein's role in the sales by non-lawyer third-parties of so-called "living trusts," often packaged with high-priced annuities. Weinstein himself rarely met with the clients, and provided little in the way of legal advice or counseling. He was formally cautioned about his use of unsupervised non-lawyers to provide legal advice and in 2001 he entered into a written Assurance of Voluntary Compliance.
The conduct, however, apparently did not stop. An undercover investigator was used to document continued problems. In recommending disbarrment, the Disciplinary Office concluded that from 2002 to 2012, acting on his own and in concert with others, Weinstein "assisted sales and delivery agents for a series of estate planning companies in the un-authorized practice of law." Further, he engaged in "false and misleading conduct, failed to consult with his clients concerning their objectives and placed his own interests above his responsibilities to his clients."
In discussing the case against Weinstein and rejecting his attempts to justify his conduct, the Disciplinary opinion points to a long-history of concerns about attorneys involved with living trust "mills" in other states (including Colorado, Missouri, and Ohio), where the products are pushed on older persons with little or no analysis of the clients' real legal needs and specific financial circumstances. Read here for the complete Disciplinary findings and the PA Supreme Court Order dated July 28, 2014.
September 16, 2014 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, September 15, 2014
One of our great readers, attorney Paul Meints from Bloomington, Illinois, has shared ideas about how to make Powers of Attorney (POAs) more responsive to practical concerns, including the possibility that when tough times eventually occur, the principal may fail to realize or recognize his or her own waning abilities, including the ability to drive safely. Here is language Paul has tailored to address these potential concerns:
Inability to Function as Principal; Inability to Operate a Motor Vehicle in a Safe and Proper Manner:
My successor Agent or My Attorney may execute and deliver an Affidavit that I am unwilling or unable to serve or to continue to serve, and such affidavit shall be conclusive evidence insofar as third parties are concerned of the facts set forth therein, and in such event any person acting in reliance upon such affidavit shall incur no liability to my estate because of such reliance. The decision as to determining my inability (1) to properly, prudently, and fully function as Principal and/or (2) to operate a motor vehicle shall be made by a Committee consisting of three of the persons [or such person’s designee] named on page one together with one other person selected by my attorney or the family committee. I authorize all health care providers who may have provided, or be providing me with any type of health care (physical and mental), to disclose all direct or Protected Health Information (HIPAA/PHI) to each member of the family committee. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of expending funds for my own use and benefit or am not giving prompt attention to my financial affairs, then my successor agent is authorized to act on my behalf. If, in the Committee's sole and absolute judgment, I am so incapacitated by reason of illness, age, or other cause that I am incapable of operating a motor vehicle in a safe, proper, and prudent manner, then my successor agent, My Attorney, or both are authorized to release and terminate my driving privileges.
I like the fact that this language realizes that not all agents will feel comfortable making decisions on sensitive matters by acting alone, and that the POA actually provides guidance for how to make an ulitimate decision about the principal's inability to handle finances or drive. In essence, this POA would appear to permit the agent to override the principal's resistence. Thanks for sharing this language, Paul. Reactions from other readers? Would your state recognize the vailidity of such language?
Monday, September 8, 2014
We all know how prevalent financial scams are, and that they are becoming more and more sophisticated. One of my colleagues, and dear friend, forwarded an email to me purportedly from his financial institution-and the email had the correct last 4 #s of his credit card! He promptly contacted the financial institution because it looked so authentic, only to find out it was a scam. The institution insisted there was no data breach. He promptly closed that account. I'm sure you have had similar experiences, or know someone who has (every semester I ask my students whether any of them have been victims of identity theft. Unfortunately, there is always at least one).
Governing ran a story a couple of weeks ago about state efforts to combat financial scams that target elders. The article, States Fight Financial Scams Aimed at Seniors, quotes Mary Twomey of the National Center on Elder Abuse, that the advancement in fighting scams is happening at the state level. For example, the article indicates that in 2014 "lawmakers in at least 28 states and the District of Columbia introduced legislation addressing the issue. Some measures focus on enhancing criminal penalties. Others target caregivers who exploit elderly charges. Some require financial institutions to report suspected exploitation."
We all know the dearth of statistics makes it a challenge to really understand the magnitude of the problem. The article quotes some studies with statistics, including a recent one from the Journal of General Internal Medicine "that found that one in 20 older adults in New York state reported that they had been financially exploited, usually by a family member, but sometimes by a friend or home-care aide."
The article also reviews some of the innovations in certain states, such as Colorado which requires training of law enforcement to recognize exploitation and abuse, with each department required to have a minimum of 1 trained officer by 01/01/2015; and North Carolina, which allows "courts ... to freeze the assets of a defendant charged with financial exploitation of a senior or disabled adult, if the victim has lost more than $5,000."
Friday, August 29, 2014
From Kaiser Health News (in partnership with NPR and Capitol Public Radio):
"A bill passed by the California legislature this week is putting Gov. Jerry Brown in a delicate position: Sign the measure and support consumer demands for a change in the state’s policy on recovering assets from Medicaid enrollees or keep the current system that generates about $30 million used to provide Medicaid benefits to more residents.
The governor typically does not comment on bills until he receives the actual text from the legislature. His Department Of Finance, however, opposes the bill, pointing out that the recovered assets help the state provide services to others. The bill that just passed the legislature this week, would prohibit the state from trying to recoup some of the money spent on older Medicaid enrollees for ordinary health coverage by recovering assets after they die.
Federal law requires states to recoup money spent on institutional care, such as nursing homes, by Medicaid, the state-federal health care program for low-income people. But it also allows states to recover costs from people after they die if they received basic medical services through Medicaid at the age of 55 or older.
In California, advocates of the bill say the current law is complicating enrollment in Medi-Cal, the state’s Medicaid program, with some people refusing to sign up, and others terminating enrollment for fear of not being able to pass on their estate.The state has enrolled 2.2 million people into Medi-Cal under the Affordable Care Act."
Thursday, August 28, 2014
Pennsylvania has a long and colorful history with charitable trusts and bequests coming from wealthy entrepreneurs, including the histories of The Barnes Foundation and The Hershey Trust, both of which have generated "classic" cases studied in law school courses.
This week, a Philadelphia Court of Common Pleas (the trial level court) issued the latest decision on the Stephen Girard Trust from 1831, the "painstaking details" of which created Girard College. For much of its existence Girard College functioned as a multi-year, residential boarding school program for orphan boys. Past court cases have resulted in rulings that permitted significant "deviations" from the terms of the wealthy philanthropist's will, including admission of minority students, female students, and expansion of the definition of "orphans" to admit students who still had one living parent.
At issue now is whether the trustees (actually a "Board of City Trusts" created by statute in 1869 to administer trusts left to Philadelphia for charitable purposes) will be permitted to further "deviate" from the settlor's original vision for the school, in order to create a more "financially sustainable" model.
Despite the long history of changes, leading the court to describe Stephen Girard's will as "the most litigated will in history," the court treated the latest proposals -- elimination of the residential program and "high school" classes -- as triggering a stricter standard of review, under the doctrine of cy pres:
"This Court does not agree that the requested modifications relate to administrative provisions of Stephen Girard's Will. The design of Girard College as a boarding school, intended to provide a residence, as well as an education to its students is reflected in the very terms of the Will....
Rather than an administrative decision, this Board [of City Trusts, acting as trustees] is seeking a cy pres remedy. This doctrine, unlike administrative deviation, is applied where a change is sought to the purpose of the trust.... Divorcing the residential aspect of Girard College and the high school program from a Girard education is inconsistent with the very terms of the Will and the directions of the testator.
The cy pres doctrine, now codified,... permits this Court to approve a change in the terms of a Trust to direct it to purposes that are as close as reasonably possible to the settlor's original intent and that are possible to fulfill. The cy pres doctrine cannot be invoked until it is clearly established that the direction of the donor cannot be carried into effect."
After reviewing the evidence about the operating finances of Girard College, the court takes the time to commend the trustees "for beginning to confront the myriad of financial, educational and institutional challenges currently facing Girard College." Nonetheless, the court concludes that based on the financial information it "cannot permit the Board to modify the Will of Stephen Girard as requested.... This Court cannot treat those proposed changes as administrative deviations and will not apply the cy pres doctrine absent a showing that achieving those objectives is impracticable."
In addition to the discussion that clearly distinguishes the law of "deviation" from "cy pres," the outcome is also notable because:
- The court had earlier rejected "standing" for a Girard College alumni group that sought to oppose the proposed changes;
- The changes were denied despite the fact that the Attorney General, who has statutory standing to enforce terms of charitable estates in Pennsylvania, had apparently declined to take action;
- The court appointed an individual to serve as "amicus curiae" to examine and report on the Trustees' proposal to modify the trust terms and the individual's recommendations were clearly important to the ruling.
Pennsylvania Attorney Neil Hendershot (and Dickinson Law alum) who represented the Girard College Alumni Association, and who alerted me to this interesting decision, has additional details on his Pa Elder, Estate and Fiduciary Law Blog. Thanks, Neil!
Whether the trial court's decision will be appealed is not yet known.
And by the way, as evidence of the long litigation history of the Stephen Girard Trust, this latest ruling is filed under what appears to be the original -- or at least a very early -- Orphan's Court docket number: "O.C. No. 10 DE of 1885." A docket number that lasts 129 years? Impressive.
Sunday, August 24, 2014
We've reported several times, including here and here, on recent academic and professional publications that address the sensitive topic of "consent" to sexual relations for individuals residing in nursing homes.
The Huffington Post and other media reports now bring the topic into the general public realm with coverage of a complicated case emerging in Iowa, where a husband has been arrested on charges connected to sexual relations with his wife, a resident with Alzheimer's, in her nursing home room.
Two items that may be critical to the outcome of the case: Alleged "notice" to the husband by the facility that his wife was no longer legally able to give consent to sexual relations, and the identity of the husband as a public figure. The fact that the husband is a state legislator is a reason why the case may get wide news coverage. But that wider coverage could also generate important discussion and debate about the deeper legal, personal and public issues. From one article:
"An Iowa legislator who allegedly had sex with his mentally incapacitated late wife has been charged with sexual abuse. Henry Rayhons, 78, a Republican state representative from Iowa House District 8, was told by medical staff on May 15 that his wife, 78-year-old Donna Rayhons, no longer had the mental ability to consent to sexual activity, according to a criminal complaint obtained by WHO-TV. Donna Rayhons, who suffered from Alzheimer's disease, had been living in Concord Care Center in Garner, Iowa, since March, according to the Des Moines Register....
In an interview with law enforcement in June,Rayhons allegedly confessed to 'having sexual contact' with his wife, according to KCCI. He also allegedly admitted that he had a copy of the document that stated his wife did not have the cognitive ability to give consent. Rayhons was charged with third-degree sexual abuse on Friday.
Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, told the Des Moines Register that even though spousal rape has been illegal in Iowa for about 25 years, arrests for the crime are rare and 'convictions are even rarer.' Barnhill also noted that sexual assault between spouses is not considered a 'forcible felony' in Iowa."
According to new sources, the family has also made a statement.
August 24, 2014 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
The Pennsyvania Joint State Government Commission issued a final report of its Advisory Committee on Long Term Care Services and Support for Older Pennsylvanians on August 21, 2014, following a year-long assessment of existing concerns of independent and care-dependent elders in Pennsylvania.
In a one-page summary of the 200 page report, the Commision makes the following Recommendations:
"Opportunities exist to improve system structure and organization, reduce barriers, and break down silos that characterize service delivery and payment. Better care transitions and improved coordination of service providers are also crucial, along with increased support for family caregivers. Focused information and awareness for consumers and families helps ensure they know where to turn when a crisis hits, which is often their first exposure to long term care. Expanding access to services and supports, through a tiered system that shares costs, will help improve quality and increase accountability. Enhancements to local resources, including Area Agency on Aging networks, will focus services and advance more equal community, facility, and home care options. These reforms will help ensure access to long term care for all Pennsylvania seniors, and prevent those who need assistance but don’t qualify for supports, from falling between the cracks."
Now comes the hard work . . . getting to an implementation stage.
Thursday, August 21, 2014
Wow! Medicaid transfer rules argued in prime time! (Well, almost...)
On August 20, the Ohio Supreme Court heard oral argument on Estate of Atkinson v. Ohio Dept. of Job & Family Services, Case No. 2013-1773. Video of the presentations (including the very interesting questions from the bench) can now be viewed here on the Ohio Channel.
This strikes me as a great opportunity for Elder Law course students to read briefs and observe lawyers in oral argument tackle technical, challenging legal issues (listen to the Court ask one attorney to slow down and explain his use of pronouns). Can you predict the outcome? Note: The Supreme Court's arguments on Ohio Channel appear as high quality productions, well edited, with subtitles indicating the names of the speakers and the identity of the issues on appeal, and the website is searchable for other appellate cases for faculty members looking for examples to use in other classes.
As framed in the appeal, the issue is whether the community husband's actions triggered a period of ineligibility for Medicaid benefits for his wife in the nursing home. The record showed the husband transfered the couple's home "out" of the couple's long-standing revocable trust to the name of the institutionalized spouse, and then in turn, the same day, to the community spouse. As described in one news account:
"The county department of job and family services found that the transfer of the home, valued at $53,750, was improper because it violated federal and state Medicaid rules. While Mrs. Atkinson’s Medicaid benefits were approved, the agency temporarily excluded nursing-home care from her coverage because of the transfer."
The state has been successful with its arguments before state agencies up to this point. The Ohio Supreme Court, however, asked the attorneys about the applicability and relevance of the 6th Circuit's 2013 decision in Hughes v. McCarthy regarding permitted use of spousal annuities in Medicaid planning in Ohio. During the oral argument, one Justice also asks whether the state should be bound by the position taken by the federal agency, Health and Human Services (apparently in an amicus brief), in support of the family's argument.
There are also opportunities here to think about whether -- and how -- this particular transfer issue might have been avoided with different planning.
Friday, August 15, 2014
"According to [Joshua Slocum, executive director for the nonprofit Funeral Consumers Alliance], most states regulate the funeral business with boards that are packed with established funeral directors. As a result, regulations tend to suppress legitimate complaints and smother new competitors. That's one of the complaints behind Heffner v. Murphy... that may end up before the U.S. Supreme Court. Plaintiff Ernest Heffner, a licensed funeral director from York [Pennsylvania] claimed that the Pennsylvania Funeral Directors Law imposes 'arbitrary, burdensome and unreasonable' restrictions on funeral businesses, including who may own funeral homes and requirement for on-site embalming rooms."
According to the ABA Journal, "the libertarian-leaning Institute for Justice has stepped in and petitioned the U.S. Supreme Court for certiorari. IJ senior attorney Jeff Rowes says the case raises legal issues central to a core mission for the institute: stopping unreasonable regulations on small businesses." The petition for certiorai was filed July 15, 2014.
For more, read "Regulated to Death: Consumer Activitists Seek Certiorari for Challenge to 'Protectionist' Funeral Laws," by Lorelei Laird.
Thursday, August 14, 2014
University of Memphis Law Professor Andrew Jay McClurg's article, "Preying on the Graying: A Statutory Presumption to Prosecute Elder Financial Exploitation," appears in May 2014 issue of the Hastings Law Journal. Professor McClurg proposes that states adopt "state criminal statutes that create a permissive presumption of exploitation with regard to certain financial transfers from elders." In correspondence, Professor McClurg points to the fact that on the surface it may appear that older persons -- victims -- are "voluntarily" parting with assets, when "in fact [the transactions] occur because of undue influence, psychological manipulation and misrepresentation."
Professor McClurg stresses the need for a statutory presumption to give prosecutors an effective tool to hold offenders accountable. His proposal has already had direct impact, in the form of Florida legislation, Fla. Stat. 825.103(2) signed into law June 20, 2014 and effective on October 1, 2014. Key language from the provision includes:
"Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transfer or multiple transactions, by a person age 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation."
The Florida provision applies "regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates...." Further, the new Florida provision does not apply to "persons who are in the business of making loans" or "bona fide charitable donations to nonprofit organizations that qualify for tax exempt status."
In cases tried to a jury under the Florida statute, the law provides that jurors "shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection." The law's presumption "imposes no burden of proof on the defendant."
UPDATE: Professor McClurg wrote again to explain that he worked directly with the Florida Elder Exploitation Task Force and with Florida Representative Kathleen Passidomo to secure passage of the new law. Professor McClurg's presumption proposal was introduced as part of H.B. 409, which passed unanimously through the two houses of the state legislature. According to Professor McClurg, the statute is the only one of its type in the nation. Thanks for the clarification, Andrew!
Tuesday, August 5, 2014
Arin Fife, from the family law firm of Boyle and Feinberg in Chicago, offers "Don't Let Divorce Derail Your Retirement Plans: Understanding Your Options Before, During and After Your Marriage" in the Summer issue of the ABA's magazine Family Advocate. She reviews retirement basics, including differences between defined benefit and defined contribution plans, how accounts are valued, how accounts may be divided and addresses what do do with contributions during the divorce proceedings. She reminds that a low-income spouse may be advised to delay a divorce if approaching the ten-year anniversary of the marriage date, thereby maximizing Social Security options based on the stronger earner's SSA record. She warns that some "states consider this an offset against accumulation during marriage. Ask your lawyer for clarification in your state."
Lots of good tips here, including the reminder that if retirement accounts will be divided using a "Qualified Domestic Relations Order" or QDRO, it is important to give the plan administrator an opportunity to review and "pre-approve" the plan, thereby avoiding arguments or surprises after the property division or divorce is complete.
Thursday, July 31, 2014
As readers of this Blog may recall, back in April 2008 NBC's Dateline program aired a segment called "Tricks of the Trade" that incorporated use of hidden cameras to record portions of seminars that allegedly showed insurance salesmen trained to market certain types of deferred payment annuities. The NBC program alleged that the sales techniques specifically and improperly targeted or misled older consumers.
Tyrone M. Clark and his company, Brokers' Choice of America (BCA), brought suit against NBC and certain employees in federal court in Colorado, claiming the Dateline program violated state law, including allegations of defamation. Clark and BCA also alleged constitutional violations. The federal district court dismissed the complaint in 2011.
On July 9, 2014 the Tenth Circuit affirmed the dismissal of the alleged 4th Amendment violations, but remanded for further proceedings on the allegations of defamation. At the heart of Clark's claim was the argument that a full, unedited viewing of his seminar for insurance salesmen would reveal that students were properly counseled that such "annuities were not for everyone" and that salespeople must give "full disclosure of various advantages and disadvantages of the annuity products." In other words, Clark claimed Dateline's excerpts were misleading, and therefore defamatory.
The Tenth Circuit's ruling on defamation stressed that it was reviewing the district court's ruling on NBC's motion to dismiss and thus must view the facts alleged in the complaint "as true and in the light most favorable to the nonmoving party," i.e., Clark and BCA. The 10th Circuit concluded, "Whether these allegations will survive summary judgment remains to be seen. The factual basis of the complaint ... is sufficient to state a plausible claim."
Further, the Tenth Circuit upheld the request by Clark and BCA to discovery of the full, unedited tapes surreptitiously recorded by NBC, production that NBC has resisted:
"BCA would be greatly prejudiced in its ability to prove the defamation claim without access to the unedited film. Dateline's First Amendment interests do not involve the disclosure of confidential information or confidential sources. The fact-finder is entitled to the best evidence available, particularly in a case like this, which asks whether the media's zeal to report and perhaps sensationalize should be tempered by its responsibility not to defame. For all of those reasons, BCA's factual allegations are sufficient to warrant discovery of the unedited film. The Colorado statue [on newsperson's privilege] is a shield, not a sword."
For additional details, see the 10th Circuit's ruling on Broker's Choice of America, Inc. v. NBC Universal, Inc. and commentary from the Colorado Bar Association's Legal Connection news.
Wednesday, July 30, 2014
What do you think about promotion of filial support laws -- laws potentially obligating adult children to care for and maintain or financially assist an indigent parent -- as grounds to encourage states to promote the purchase of "long-term care" insurance? In essence, that is what three authors associated with the "American College of Financial Services" advocate in a recent article for volume 20 of Widener Law Review. Here's the SSRN abstract from "Leveraging Filial Support Laws Under State Partnership Programs for Long-Term Care Insurance."
"As thousands of the United States’ baby-boomers retire each day, people live longer, families disperse, and the population ages. Financing long-term care needs has become an increasingly important focal point in both civilian and government budget discussions. In order to reduce reliance on government provided long-term care funding programs such as Medicaid, states can leverage the often unenforced filial responsibility laws and State Long-Term Care Partnership Programs. Through the enforcement of existing filial responsibility laws, states can provide the proverbial “stick” to incentivize people to purchase long-term care insurance by increasing their personal liability for their family members’ long-term care expenditures. Furthermore, by offering liability protections from filial responsibility laws under the state’s long-term care insurance partnership program, states will be able to offer a “carrot” to encourage participation in the long-term care insurance market. Ultimately, by leveraging these two existing legal structures, states can incentivize the purchase of long-term care insurance and reduce reliance on government provided long-term care financing programs."
Monday, July 28, 2014
Recently a former law student who is considering a career change asked me about elder law, wanting to meet with me to discuss what is involved. I'm happy to chat any time with current and former students, especially about elder law, but this time my advice was simple: "Drop everything and go to Pennsylvania's 2014 Elder Law Institute." Indeed, this year saw some 400 individuals attend.
Important to my advice was the fact that ELI is organized well for both "newbies" and more experienced practitioners. After the first two-hour joint session, over the course of two days there are four sessions offered every hour. One entire track is devoted to "Just the Basics" and is perfect for the aspiring elder law attorney. Indeed, I usually sponsor two Penn State law students to attend. As in most specializations, in elder law there will is a steep learning curve just to understand the basic jargon, and the more exposure the better.
One of my favorite sessions is the first, "The Year in Review," a long tradition at ELI and currently presented by Marielle Hazen and Rob Clofine. Marielle reviews new legislation and regulations, both at the state and federal level, while Rob does a "Top Ten Cases" review. Both speakers focus not just on what happened in the last 12 months, but what could or should happen in the future. They frequently pose important policy perspectives, based on recent events.
Among the highlights from the year in review session:
- Analysis of the GAO Report on "Medicaid: Financial Characteristics of Approved Applicants and Methods Used to Reduce Assets to Qualify for Nursing Home Coverage" released in late June 2014. Data collection efforts focused on four states and reportedly included "under cover" individuals posing as potential applicants. The report summarizes techniques used to reduce countable resources, most occuring well within the rules and thus triggering no question of penalty periods. Whether Congress uses the report in any way to confirm or change existing rules remains to be seen.
- A GAO Report on Medicaid Managed Care programs, also released in June, concluding that additional oversight efforts are needed to ensure the integrity of programs in the states, which are already reporting higher increases in outgoing funds than fee-for-service programs.
- The need to keep an eye open for Pennsylvania's Long Term Care Comission report, expected by December 2014. Will it take issue with the Governor's rejection of the Affordable Care Act's funding for expansion of Medicaid?
- Report on a number of lower court decisions involving nursing home payment issues, including a report on a troubling case, Estate of Parker, 4 Pa. Fiduciary Reporter 3d 183 (Orphans' Court, Montgomery County, PA 2014), in which a court-appointed guardian of the estate of an elderly nursing home patient "agreed" to entry of a judgment, not just for nursing home charges, but also for pre- and post-judgment interest, plus attorneys' fees for the nursing home's lawyer of almost 20% of the stipulated judgment, in what was an uncontested guardianship.
In light of the number of nursing home payment cases in Rob's review, perhaps it wasn't a surprise that my co-presenter, Stanley Vasiliadis, and I had a full house for our session on "Why Am I Being Sued for My Parents' Nursing Home Bill?" We examined how adult children (and sometimes elderly parents of adult children in care) are finding themselves the target of collection efforts by nursing homes, including actions based on theories of breach of promise (contract, quatum meruit, and promissory estoppel), fault (common law fraud or statutory claims of "fraudulent transfers), or family status, such as statutory filial support.
The extensive course materials from all of the presenters, both in hard copy and electronic formats, are available for purchase directly from the Pennsylvania Bar Institute.
July 28, 2014 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)