Monday, November 23, 2015

Mass. Appellate Court Reinstates Legal Malpractice Verdict Following Flawed Medicaid-Planning Advice

In October 2015, the Massachusetts Court of Appeals addressed the question of whether there were damages flowing from a lawyer's Medicaid advice to an older couple. The lawyer had counseled that, for Medicaid planning reasons, the couple should not retain a life estate in a house purchased with their money but held in the name of their adult children. The court found the surviving mother suffered real damages, even if eviction from the house by her children was unlikely.  Key allegations included:

Thirteen years later, in July of 2007, the Brissettes [the parents] and two of their four children, Paul Brissette and Cynthia Parenteau, met at [Attorney] Ryan's office to discuss the Brissettes' desires to sell the South Hadley home and to buy property located in Springfield. They discussed the prospect of putting the Springfield property in the names of Paul and Cynthia. Ryan told the Brissettes that if they reserved life estates in the Springfield property, they could be ineligible for Medicaid if they applied any time within five years of getting the life estates. He also told them that if they took life estates in the Springfield property, there could be a Medicaid lien against that property when they died. There was evidence that the Brissettes asked about “protection,” but Ryan told them that he did not feel that the Brissettes needed protection because they could trust their children to do what they wanted them to do. In reliance on Ryan's advice, the Brissettes decided that the Springfield property would be bought with their money  but put in Paul's and Cynthia's names, and that the Brissettes would not have life estates in the Springfield house.

After her husband's death. Mrs. Brissette concluded she wished to own "her" home in her own name, but the children declined to re-convey the property to her. 

During the malpractice trial, Lawyer Ryan conceded his advice about the effect of a life estate on Medicaid and/or a Medicaid lien was wrong, and expert witnesses also testified that the incorrect Medicaid advice was "below the standard of care applicable to the average qualified attorney advising clients for Medicaid planning."

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November 23, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Medicaid, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, November 20, 2015

Filial Friday: Court Finds Less Than "Ideal" Childhood Not Enough to Release Duty to Support Indigent Parent

It is, perhaps, a mark of the growing acceptance of filial support obligations in Pennsylvania courts -- although not necessarily equating with understanding by the general public in Pennsylvania -- that a recent appeal from a filial support ruling resulted merely in a "nonprecedential" opinion by the appellate court, one that adopts the findings of the lower court.

In Eori v. Eori, 2015 WL 6736193, (Aug. 7, 2015) the Pennsylvania Superior Court affirmed the trial court's award of $400 per month in support with a short opinion.  This ruling obligates one son, the defendant, to contribute financially towards the care of his 90-year old mother, being provided in the home of another brother. The incorporated findings of fact, from the lower court, track a sad family story.  One point in dispute was whether the mother's alleged actions during the son's childhood constituted the defense of "abandonment":

Defendant’s next error complained of on appeal pertains to the second defense Outlined in 23 Pa. C.S.A. Section 4603(2)(ii), which negates the obligation of filial support when it is established that the parent seeking support abandoned the child during a ten year period of the child’s minority. In this case, the Defendant argued that he was abandoned and raised as error number six that the trial court failed to consider said testimony. The term “abandoned” is not defined in the act itself, However, the Custody Act at 23 Pa.C.S.A. Section 5402 defines “abandoned” as “left without provision for reasonable and necessary care or supervision.” Defendant testified that he did not have the greatest family growing up and he wanted to get away. . . . He testified that his grandmother cared for him more than his Mother; however, they were never far apart because he testified that his grandmother either lived with Mother or beside Mother. . . .  Although he testified that Mother was abusive, left and caused them to move many times, and was either gone or fighting, he never established that she left for a ten year period. He did not provide details or time periods on any of the testimony presented.

The lower court concluded:  "Therefore, it was not clear from [son's] testimony that Mother ever left for a ten year period without provision for his reasonable and necessary care or supervision. Although it may not have been an ideal childhood, there was no evidence of abandonment to release Defendant from his obligation to support Mother."

Procedural note:  In Pennsylvania, trial judges have the option of waiting to write "opinions" explaining their "orders" until after a notice of appeal is filed by a party.  Pennsylvania Rule of Appellate Procedure, Rule 1925. Further, the trial judge can also require the appealing party to file a "statement of errors," in advance of the trial judge's obligation to write an opinion.  I don't know how many states use this process, but certainly by comparison to the Federal Rules of Civil Procedure, it is a rather unique opportunity for judges to write an opinion, as did the trial judge in the Eori case, that, in essence, expresses views on the merits of the "appeal." 

For those gathering together as family for Thanksgiving next week, perhaps this case history provides lessons.

November 20, 2015 in Current Affairs, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, November 18, 2015

Opinion: Might California's New Law on Assisted Suicide Facilitate Elder Abuse?

Washington State Elder Law Attorney Margaret Dore has shared with us her interesting analysis of "California's Assisted Suicide Law: Whose Choice Will It Be?," published here in JURIST, the on-line platform by University of Pittsburgh Law.  She criticizes California's new law as inviting misuse, including elder abuse, observing:

The bill, ABX2-15, has an application process to obtain the lethal dose, which includes a written lethal dose request form with two required witnesses. Once the lethal dose is issued by the pharmacy, there is no oversight over administration. No one, not even a doctor, is required to be present at the death. 

allows one of the two witnesses on the lethal dose request form to be the patient's heir, who will financially benefit from the patient's death. This is an extreme conflict of interest. Indeed, under California's Probate Code, similar conduct (an heir's acting as a witness on a will) can create a presumption that the will was procured by "duress, menace, fraud or undue influence." ABX2-15, which specifically allows the patient's heir to be a witness on the lethal dose request form, does not promote patient choice. It invites duress, menace, fraud and undue influence.

Further, she notes the potential trauma for family members, citing examples from her practice:

Two of my clients, whose fathers signed up for the lethal dose in Washington and Oregon, suffered similar trauma. In the first case, one side of the family wanted the father to take the lethal dose, while the other side did not. The father spent the last months of his life caught in the middle and torn over whether or not he should kill himself. My client, his adult daughter, was severely traumatized. The father did not take the lethal dose and died a natural death. In the other case, it is not clear that administration of the lethal dose was voluntary. A man who was present told my client that the client's father had refused to take the lethal dose when it was delivered, stating: "You're not killing me. I'm going to bed." But then took the lethal dose the next night when he was already intoxicated on alcohol. My client, although he was not present, was traumatized over the incident, and also by the sudden loss of his father.

Ms. Dore is a former Chair of the Elder Law Committee of the American Bar Association Family Law Section. She is also president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia. 

November 18, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, November 11, 2015

Pennsylvania Reports on Implementation of Recommendations by Elder Law Task Force

In the October 2015 issue of the Pennsylvania Bar Quarterly, attorney Owen Kelly reports on "The Pennsylvania Supreme Court Elder Law Task Force Report and Recommendations" as a "Blueprint for Justice."  His overview provides:

Our  Commonwealth is in the midst of a period of unprecedented growth in its elder population and this growth is projected to continue for the foreseeable future.  The growing elder population will present profound challenges to the Commonwealth's courts, particularly with respect to guardianships, abuse and neglect, and access to justice.  In April 2013, the Pennsylvania Supreme Court established the Elder Law Task Force to address the impact this growing segment of the population will have on the judicial system.  In November 2014, the Task Force issued its report which contained a multitude of recommendations on a variety of issues related to elders' interactions with the court system.  Since their creation on January 1, 2015, the two entities charged with overseeing implementation of the Task Force's recommendations -- the Office of Elder Justice in the Courts and the Advisory Council on Elder Justice in the Courts -- have been actively implementing many of the recommendations.  Task Force recommendations implemented or in progress include: proposed new and revised guardianship forms; education and training initiatives; proposed changes to the Rules of Criminal Procedure; revising bar admission rules to allow retired or voluntarily inactive attorneys to provide pro bono services for elders; a study of a pilot Elder Court; and changes to the statewide electronic case management system to allow for better monitoring of guardianships.

As someone who was a member of the Task Force, I am glad see that concrete steps are underway to implement changes, especially with respect to better accountability for guardianships on a state-wide basis. Much work is ahead.  

November 11, 2015 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, November 10, 2015

New York Court Addresses "Medicaid Transfer" Issue in Context of Continuing Care Community (CCRC)

On November 6, 2015 the appellate division of New York's Supreme Court addressed an issue long brewing in some states, whether Continuing Care Retirement Communities (CCRCs) can insist on "private pay" for skilled nursing care despite a resident's "eligibility" for Medicaid under state and federal laws.  In Good Shepherd Village at Endwell, Inc. v. Yezzi, the unanimous panel affirmed summary judgment in favor of the CCRC on the payment question.

The decision highlights Congressional DRA action in 2005/6 that amended federal Medicaid law to expressly permit CCRCs to offer contracts that require residents to "spend on their care resources declared for the purposes of admission before applying for medical assistance."  The DRA amendment was a response to the industry's lobbying efforts, following a 2004 decision by a Maryland appellate court in Oak Crest Village, Inc. v. Murphy that held such a contractual provision violated the federal Nursing Home Residents' Bill of Rights, viewed as prohibiting nursing homes from conditioning admission on guarantees of private pay.

In the New York case history, the couple apparently signed two separate documents, beginning with a "contract" at the time of their entrance into the CCRC that required them to pay both an entrance fee ($143,850) and "basic monthly fees" of approximately  $2,550 to cover the cost of independent living.  Any need for skilled nursing care would be assessed "an additional charge."  That contract provided that residents could "not transfer assets represented as available" for less than fair market value.  When the wife needed skilled care, the couple signed a second document, referred to in the case as an "admission agreement," for treatment in the CCRC's skilled nursing unit. The "admission agreement" reportedly required the Yezzis to "pay for, or arrange to have paid for by Medicaid" all services provided by the CCRC.

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November 10, 2015 in Consumer Information, Estates and Trusts, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Monday, November 9, 2015

A Pragmatic Look at Health Care "Billing Codes" for Advance Care Planning

Professor Janet Dolgin from Hofstra University has a very good article in the October 2015 issue of ABA's The Health Lawyer on "Reimbursing Clinicians for Advance-Care Planning Consultations: The Saga of a Healthcare Reform Provision."  The article offers facts, analysis, historical perspective and opinion about the need to approve payment to health care providers in order for them to be able to engage fully with clients and their families in careful conversations about advance care planning, including end-of-life decisions.  The article is concise, but the downside for interested readers is the digital version of the article is currently behind a pay-wall for ABA Health Care Section members only. 

To stimulate your interest in tracking down a hard copy, perhaps through your law colleagues or local law libraries, here are a few highlights.  Professor Dolgin writes:

Advance care planning is part of good healthcare.  Thus, paying clinicians to talk with patients about advance care planning makes sense:  it enhances advance care planning and thereby serves to effect good healthcare.  "If end-of-life discussions were an experimental drug," writes Atul  Gawande in his recent book, Being Mortal, "the FDA would approve it." Yet efforts to provide for reimbursement to clinicians for time and attention given to advance-care-planning conversations with Medicare patients have been stymied since 2009 (at least until quite recently) by the politics of healthcare reform....


Published, peer-reviewed research shows that ACP [Advance Care Planning] leads to better care, higher patient and family satisfaction, fewer unwanted hospitalizations, and lower rates of caregiver distress, depression and lost productivity....


In July 2015 CMS accepted the recommendation [supported by AARP, the AMA and others identified in the article] and opened the proposal to [pay health care clinicians for such consultations] to a two month-comment period in its proposed physician payment schedule for 2016.... If the proposed rule is accepted by CMS, payments for advance-care planning consultations are slated to begin in early January 2016. 

The article demonstrates well the tension between the use of administrative law options to achieve what Congress finds unable or unwilling to address as a matter of Congressional laws.  Of course, administrative processes can gore the ox of either side on a politically-charged debate. 

Perhaps I am alone in being sad that it takes billing codes approved by insurance providers and CMS to achieve appropriate consultation between health care staff and families about advance decision-making.  But Professor Dolgin's article is a realistic explanation for exactly why that "is" necessary. 

November 9, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink

Thursday, November 5, 2015

Are There Limitations on Estate "Re-Planning" Following Adult Adoptions, Especially for Same-Sex Couples?

In my course on Wills, Trusts and Estates, students always seem to be intrigued by "adult adoptions." There can be a variety of reasons for an adult adoption, often tied to estate planning goals, including attempts to create statutory heirs that can nullify challenges by other family members to bequests in traditional estate documents, such as wills or trusts on the grounds of "undue influence."  Sometimes the cases are connected to sad facts, such as the troubled life of tobacco heiress Doris Duke, who at age of 75 adopted a much younger woman, but came to regret that fact, leading to a mostly unsuccessful attempt at disinheritance. Robert Sitkoff's casebook on Wills Trusts & Estates has a fascinating profile of the Duke case, even though the original reasons for the adoption were not entirely clear. 

In the news this week is a less unhappy, but still complicated case -- and I imagine there could be similar cases around the country -- where in 2012,  after forty years as a same-sex couple, a retired teacher adopted his partner, a retired writer: 

Now, they're trying to undo the adoption to get married and a state trial court judge has rejected their request, saying his ability to annul adoptions is generally limited to instances of fraud.


"We never thought we'd see the day" that same-sex marriage would be legal in Pennsylvania, Esposito, 78, told CNN in a telephone interview. The adoption "gave us the most legitimate thing available to us" at the time, said Bosee, 68.

 For more on the facts, see "Couple Seeks Right to Marry.  The Hitch? They're Legally Father and Son," by CNN writers Evan Perez and Ariane de Vogue.  
And a hat tip to Dickinson Law student Kadeem Morris, who spotted this interesting piece. 

November 5, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 22, 2015

LTC Facilities Monitoring in Illinois

I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases.  Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and  "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense."  There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.

Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws.  There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident.  The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.

In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents.  The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place.  Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.

The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency.  If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent.  Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio,  powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and  ombudsman. Other restrictions beyond the statutory ones can be imposed.  The statute addresses other matters, such as notice, reporting and more.   Read the Illinois statute here.

October 22, 2015 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

NYT: Dying Alone Is Not -- in the Long Run -- a Solo Activity

In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell.  It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days.  You may have stopped reading precisely because it is such a sad story.  But, at the same time, George's story is a surprising tale of the potential consequences of dying alone.  The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will.  Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.

My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story.  As he points out, this story gives another side to our course on Wills Trusts & Estates.     

October 22, 2015 in Current Affairs, Estates and Trusts, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Wednesday, October 21, 2015

The Importance of Understanding Trusts in Family Law, Especially If Divorce Looms

The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust."   The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:

Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms. 

The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children.  The issue ends with a bonus -- a primer on "will basics."

The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away. 

The entire issue seems like a good resource for a wide audience, including law students.  Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of  publication.  Apparently you can purchase paper copies (see for example the rates for the previous issue, for  Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase.  I guess you have to keep checking!    

October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 20, 2015

Top Ten Myths and Facts about "Living Wills" -- Charles Sabatino Lays Them Out

ABA's Bifocal, an electronic journal from the ABA Commission on Law and Aging has released one of its October issue articles.  Written by Charlie Sabatino in his usual bold style, we confront ten "Myths and Facts About Health Care Advance Directives," sometimes better (if confusingly) known as "living wills."  To tease the article,  Myth #3 is "Advance Directives are legally binding, so doctors have to follow them."  You will want to read the rest of the story....

October 20, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 19, 2015

Market Trends in Financing for Senior Housing Options

Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948. 

For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC).  Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs.  The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.  

I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.  

Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds.  What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization?  Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?   

October 19, 2015 in Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, Retirement, State Statutes/Regulations | Permalink | Comments (1)

Thursday, October 15, 2015

When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?

Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent.  My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.

But something in the back of my mind was itching, and of course, over  the weekend I started scratching.  I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law." 

The case is from California, where divorcing spouses were arguing over division of community property.  One focus of the disputes was proceeds of the sale of a former house.  While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt."  Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.

Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."  

The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.

On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself."  For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).

October 15, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 13, 2015

Let's Get this Right: "Who Is Your Client?" in Elder and Disability Law

In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs.  But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"

A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients.  In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem.  The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.

In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."

The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and  therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."   

As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available." 

However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent.  Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.

Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."

The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship  violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest.  Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.

The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care." 

The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."

October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, October 9, 2015

Filial Friday: Freakonomics Asks "Should Kids Pay Back Parents for Raising Them?"

In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.  

This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is.  We were talking about his research-based observation in the book about adult children and needy parents:

Adult children were not legally bound to remain and to work for their parents.  Nor were they obligated to care for the old.  Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.

I asked, "what about filial support laws?"  Turns out that was a timely question because Professor Hartog  had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015.  In the interview Professor Hartog was asked to comment on filial support laws.  He said in part:

Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced.  Very, very, very, very rarely.  So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers. 

Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s.  And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits.  But...

I think the modern story is quite different in at least one state -- Pennsylvania.  Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era.  Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.

Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany. 

Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.

This seems a more realistic paradigm, although  not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.

October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 6, 2015

Gov. Brown Reflecting on "What I Would Want In The Face Of My Own Death"

California Governor Jerry Brown signed the California legislature's "right to die" act on Monday, October 5.  From coverage in the San Diego Union-Tribune:

Gov. Jerry Brown, a lifelong Catholic and former Jesuit seminarian, said he consulted a Catholic bishop, two of his own doctors and friends "who take varied, contradictory and nuanced positions."


"In the end, I was left to reflect on what I would want in the face of my own death," wrote the Democratic governor, who has been treated for prostate cancer and melanoma. "I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill."


Brown's signature on the right-to-die legislation Monday capped an intensely personal debate that dominated much of this year's legislative session and divided lawmakers. Many lawmakers also drew on personal experience to explain their decisions to support or reject legislation making California the fifth state to allow terminally ill patients to use doctor-prescribed drugs to end their lives.

California joins Oregon, Washington, Vermont and Montana in permitting certain assistance in decisions to end one's life

October 6, 2015 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, State Statutes/Regulations | Permalink | Comments (0)

"Over the Hill" as an Evolving History Lesson

We have mentioned Hendrik Hartog's book, Someday All This Will Be Yours: A History of Inheritance and Old Age, (Harvard Press 2012) on this Blog as we did on this post outlining a recent symposium law review with articles inspired by the book.  I've been remiss, however, in not recommending the book directly. 

So let me correct that oversight now.  If you haven't read Princeton Professor Hartog's book, or if (as was true for me for too long) you have allowed the book to sit on your "to read" stack, it's time to get to it.  The book is a treasure of analysis, commentary, legal history, critique and provocation arising from the simple proposition that in many relationships, someone often utters (or thinks they have heard) words to the effect, "when I'm gone, someday, all this will be yours."  The underlying legal question is what happens when no document (such as a will, a trust, or a contract) puts that pledge into writing.

I find much to talk about when reading Hartog's words.  One curious item he describes is a poem, "Over the Hill to the Poor House," published by Will Carleton in 1872.  Hartog explains that the poem is the source for the now common saying "over the hill" to refer to persons of a certain age.  But Hartog points out that the poem's poignancy comes from its all-too-true narrative by one woman about what it can be like to grow old, frail and widowed, even if you have a large family of loving children.

From the closing lines of the poem:

An’ then I went to Thomas, the oldest son I’ve got,
For Thomas’s buildings’d cover the half of an acre lot;
But all the child’rn was on me—I couldn’t stand their sauce—
And Thomas said I needn’t think I was comin’ there to boss.

An’ then I wrote to Rebecca, my girl who lives out West,
And to Isaac, not far from her—some twenty miles at best;
And one of’em said’twas too warm there for any one so old,
And t’other had an opinion the climate was too cold.

So they have shirked and slighted me,an' shifted me about-
So they have well-nigh soured me,an' wore my old heart out;
But still I've borne up pretty well, an' wasn't much put down,
Till Charley went to the poor-master, an' put me on the town.

Over the hill to the poor-house--my chil'rn dear, good-by!
Many a night I've watched you when only God was nigh;
And God 'll judge between us; but I will al'ays pray
That you shall never suffer the half I do to-day.

And for a colorful "sung" version of the poem, with a change in gender for point-of-view, go to Lester Flatt and Earl Scrugg's version of Over the Hills to the Poorhouse

Over 140 years later, we still hear the phrase "over the hill" in less-than-kind contexts, but one hopes the prospects for care and assistance are not quite as grim as described in these verses. 

October 6, 2015 in Books, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 5, 2015

New Illinois Law on "Presumptively Void" Bequests to Non-Family Caregivers Has "Starring" Role

Illinois adopted a new law, Public Act 098-1093, effective on January 1, 2015 that assigns a "presumptively void" status to bequests made to non-family caregivers, if the transfer would take effect upon the death of the cared-for person.  The law applies only to post-effective date bequests that are greater than $20,000 in fair market value.  The statutory presumption can be "overcome if the transferee proves to the court" either:

1. by a preponderance of the evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to receive under ... a transfer instrument in effect prior to the transferee becoming a caregiver, or


2. by clear and convincing evidence the transfer was not the product of  fraud, duress or undue influence.

The law only applies in civil actions where the transfer is challenged by other beneficiaries or heirs. 

(Fun) Spoiler Alert:  The new law plays a clever "starring role" in the Fall 2015 season premiere of  The Good Wife.  Let's see how many of our law students were watching!

October 5, 2015 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, October 1, 2015

Michigan Supreme Court Invites Amicus Briefs From Elder Law & Disability Law Organizations

The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.

Following the Michigan Court of Appeals' 2014 ruling in  Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks.  Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.

In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions.  Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."

The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."

October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 30, 2015

Do Tontines Have a Valid Role in Modern Retirement Planning?

Jeff Guo, writing for the Washington Postrecently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:

Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....


But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”


Here is where tontines come in.  If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.


A simple modern tontine might look like this:  At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever.  Every year, the group withdraws a predetermined amount and divides it among the remaining survivors.  You might get a bonus one year, for instance, because Frank and Denise died....

 Want to know more?  Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement.  Hat tip to David Pearson for sharing this story. 

September 30, 2015 in Consumer Information, Crimes, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Retirement, State Statutes/Regulations | Permalink | Comments (0)