Friday, December 13, 2013
Pennsylvania's House of Representatives has been holding a series of hearings on elder abuse, in anticipation of potential amendments to the state's Older Adult Protective Services Act. The hearings offer presentations and panel discussions with experts speaking from different perspectives, including administration, law enforcement, providers, and advocates from various organizations.
I was invited to speak at the last panel on the topic of "financial exploitation," as a member of the Pennsylvania Bar Association's Elder Law Section, and because of my experience as the former head of Penn State Dickinson's Elder Protection Clinic. Other speakers included representatives of the Pennsylvania Bankers Association; community banks; credit unions; and from Area Agencies on Aging that are charged with investigation of reports of suspected abuse. A particularly strong speaker was Linda Mill, a certified financial examiner and former banker, who is now the investigations manager for Temple University's Institute on Protective Services.
During the bankers' presentations, speakers emphasized their institutions' training for all levels of personnel to spot red flags of abuse. This was part of their argument against any need for the state to adopt "mandatory reporting" of suspected abuse by banks and other financial institutions. In contrast, Mills testified that during the last ten years, despite her history of working on the bankers' side, she had come to the personal conclusion that mandatory reporting is necessary in order to provide more timely, effective investigation by public authorities. Mills pointed to Maryland's 2012 adoption of mandatory reporting as precedent.
The interaction between panelists and legislators was robust. For example, Committee Co-Chair Steve Samuelson (in the photo on the right, seated next to Chairman Tim Hennessey) asked whether agents under powers of attorney should be required to file annual reports to facilitate greater accountability. Representative Stephen McCarter asked about the practicality of "bonding" for agents using POAs. Representative Harold English had a detailed list, including the possibility of "payback" to fund investigative services and mandatory "recording" of current documents in order to make it clearer about which POAs are "in effect." He also expressed concern about annuity sales to elders.
Draft legislation updating Pennsylvania's Older Adult Protective Services Act is expected to circulate for comment later this month.
Special thanks to Eric Kovac from the Pennsylvania Bankers Association for sharing copies of his "insider" photos from the hearing.
Thursday, December 12, 2013
Pennsylvania's Department of Aging (PDA) has made public a long-awaited report on "The State of Guardianships in Pennsylvania." PDA commissioned the Center for Advocacy for the Rights and Interests of the Elderly (CARIE), a nonprofit organization based in Philadelphia, to identify, research and analyze current approaches to guardianship around the state. Using a multi-faceted research design to collect information on current practices from a host of sources, CARIE was able to tackle some of the toughest systemic questions, including:
- How thoroughly are the rights of the Alleged Incompetent Person (AIP) protected when AIPs do not have legal representation 25% of the time, and the judges are inconsistent in appointment of counsel or insisting that AIP have counsel?
- How responsive is the state's guardianship system to ensuring the AIP's right to due process when in only 1% of the cases was the hearing for a guardianship held at the AIP's location?
How thorough is the guardianship hearing when the average hearing is only 34 minutes for uncontested hearings?
- How much is invested in the guardianship systems when the majority of Area Agencies on Aging (AAA) staff that work with guardianship receive very little training specifically focusing on guardianship?
- How transparent is the guardianship process when only 57% of lawyers indicated that the entire guardianship hearing was held on the record?
- Are all avenues to alternative guardianship explored when 42% of lawyers indicated they had not been asked by the court to demonstrate they had explored alternatives to guardianship?
- Has guardianship become a defacto way to move someone into a nursing home when 42% of consumers are living in a nursing home 90 days after a guardianship appointment when the AAA is involved?
CARIE has made specific recommendations for changes to improve the Pennsylvania system (systems?) and thereby better protect the rights of vulnerable individuals. PDA seems to have made the decision not to publish CARIE's recommendations as part of the report, so we'll have to wait for a separate release. But, I suspect readers will get a strong idea of the recommendations from reading the report on CARIE's fact investigation. Feel free to add your reactions and comments below.
Thanks to Attorney Alissa Halperin, a co-director for the CARIE research team, for alerting us to the public release of the study.
Monday, December 9, 2013
As readers of this blog will be aware from previous posts, Pennsylvania courts are willing to enforce the Commonwealth's filial support law. The law, at 23 Pa. C.S.A. Section 4603, makes spouses, parents or adult children potentially liable to "care for and maintain or financially assist" each other where the care-needing family member is "indigent." Pennsylvania's law has been interpreted as giving nursing homes or other third-party caregivers standing to sue.
The suits can cross state lines, usually because the target defendant is an out-of-state son or daughter of a nursing home resident in Pennsylvania, thus creating potentially interesting questions of personal jurisdiction. But the latest suit I've seen is an interesting twist on that fact pattern.
In Eades v. Kennedy, P.C. Law Offices, filed in United States District Court for the Western District of New York, a New York husband and daughter are the plaintiffs, suing a Pennsylvania law firm that attempted to collect a nursing home debt "by means of at least one item of correspondence and at least one telephone call." The plaintiffs in the New York suit are also apparently defendants in a Pennsylvania lawsuit filed by the nursing home. At issue is a bill for $8,000. The nursing home in question, located in Corry, Pennsylvania, is just a few miles south of the New York state line.
In the New York suit, Eades asserts that the collection attempts violated the Fair Debt Collection Practices Act (FDCPA) and further that the law firm's allegations of their liability under Pennsylvania's filial support law is "preempted" by federal Medicare/Medicaid law, under a provision of the Nursing Home Reform Act (NHRA) that bars a nursing home from requiring "a third party guarantee of payment to the facility as a condition of admission."
The New York federal district court dismisses the suit, concluding that there is no "jurisdiction," apparently both on subject matter jurisdiction and personal jurisdiction grounds. But then the ruling gets more interesting. The court proceeds to address the substantive claims by the family members, and seems to conclude that a cause of action under the FDCPA is not triggered by a "support" claim, including a filial support claim. Further, the court suggests there is no preemption under federal law for the following reasons:
"The NHRA holds that nursing homes may not require an individual's relatives to assume personal liability for the individual's care as a condition of admission or continued residence in the facility. The Pennsylvania indigent statute cannot be said to cover the same territory: it merely holds that where a resident is or becomes indigent, a nursing home may seek payment or reimbursement for the resident's care from their spouse, children or parents. It does not bypass the NHRA by permitting or excusing the assumption of personal liability by a relative for a nursing home resident's care as a consideration of admission or continued residence -- the sole evil that the NHRA ... appears to have been intended to prevent."
On December 3, 2013, the New York court dismissed the father/daughter's amended complaint for failure to "state a claim." The case is Eades v. Kennedy, P.C. Law Offices, No. 12-CV-66801, 2013 WL 6241272 (W.D. N.Y. 2013).
Sunday, December 8, 2013
Recently I was invited to give the keynote address for an annual meeting of MaCCRA, the Maryland Continuing Care Residents Association, held at Vantage House in Columbia, Maryland. As always happens, I learned a great deal from the opportunity to meet with individuals who care deeply about their communities and want to see them continue to succeed. Maryland is home to some 37 Continuing Care Retirement Communities (CCRCs), with close to 20,000 residents.
MaCCRA has a long and especially interesting history of advocating for appropriate protections for current and future residents of Continuing Care Retirement Communities. Most recently, between 2008 and 2012, MaCCRA supported a series of legislative efforts, including some that were ignored or soundly defeated, but culminating in passage of Senate Bill 485 and House Bill 556 in 2012 that amended of Maryland's CCRC oversight laws (Md. Code. Ann. Hum. Serv. Sections 104-1 et seq.). For example, the amendments require:
- greater disclosure of how entrance fees will be used or held, including a requirement of express disclosure about whether fees will or can be used for purposes unrelated to the community;
- greater disclosure of ownership interests in the community;
- disclosure of annual budgets (not just financial statements);
- increase of operating reserves from 15% of net operating expenses to 25%, with a ten-year phase-in; and
- certain restrictions on encumbrances of operating reserves
Such successes have required perseverance, with MaCCRA playing an important role in educating residents across the state as well as legislators. Indeed, MaCCRA understands that grass root movements alone may not be enough, and the organization has worked for twenty years with an experienced lobbyist, thus helping to assure institutional memory while working in small and large ways to urge greater accountability by providers.
One of the questions I frequently am asked during interactions with CCRC resident groups around the country is whether the most appropriate administrative unit of state government to provide oversight is the department of insurance. My response is that the name on the door is not as important as the state's commitment to hiring knowledgeable individuals with finance-specific training and who are not captives to the industry, regulators who are willing to take a balanced approach to oversight. The current operation of the unit of Maryland's Department of Aging charged with oversight of CCRCs strikes me as providing a good example of that commitment.
MaCCRA is a chapter of the National Continuing Care Residents Association (NaCCRA); during my visit to Maryland I learned that a MaCCRA member was an early leader in forming NaCCRA.
Wednesday, December 4, 2013
In my travels, I often talk with families struggling to care for aging loved ones in the parents' home. One frequent topic is how challenging it can be, especially in certain parts of the country, to find reliable home care workers, especially if no adult child lives close enough to supervise.
Recently, one family described to me an additional complication, what to do when the best home care workers insist on being paid in cash, under the table. Here's the setting:
"When my father began to need more care than my mother could provide on her own, and more than I could provide by driving up for long weekends, we tried local agencies. We had almost constant problems with untrained workers and frequent turnover. I decided to try to hire someone directly, realizing that part of the problem was the low rates paid to the employees by the agencies, usually less than half of what we were paying the agency. In some instances the individual was making just over minimum wage, and often the agency refused to pay overtime, because our state law exempts home care workers from certain threshold Labor rules. When I started looking, I discovered that the agencies were advertising on Craig's List too, and I realized the agencies were finding it hard to get reliable workers. We were competing for the same workers.
Finally, I talked to a local Veterans office, who suggested that sometimes informal teams form, almost as spin-offs from an agency, and will work directly for the family. The team members are used to working together, and would cooperate with each other to meet our growing needs for around-the-clock care. They charge less than the agencies, but their take-home pay is higher.
I finally found this kind of local team, two mature women who would work on a shift system, coordinating with each other to provide reliable care. But there was one big problem. They refuse to sign a contract, work for an agency, or have any record of their care, and they won't work for our family if we insisted on withholding for taxes or Social Security. After weeks of problems with agencies, we were desperate, and they knew it. Even though Dad qualifies for VA aide & attendance, we cannot get reimbursed without proper records. The irony is these two woman are providing the best care we've had to date for my parents, and they are reliable. But they are insisting on cash. Frankly, they have us over a barrel, at least for the current emergency."
As depicted on the U.S. Department of Labor website, state laws vary on whether in-home care workers are covered by minimum wage and overtimes rules. The catch-22 is that in many instances, paying higher rates would make home-care unaffordable for families. However, low pay and no benefits are often analyzed, if not addressed, as issues of fairness for the worker, rather than the employer.
Unreported income is, of course, a long-standing issue for taxing authorities, usually discussed in the context of hiring a nanny, house-cleaner, or gardener. Is under-the-table pay for home care workers a trend in your area of the country? Feel free to send us links to emerging legal research on this topic.
Tuesday, December 3, 2013
First Court Challenge FiledTo State Statute Restricting Assistance to Consumers Seeking ACA Coverage
Wednesday, November 27, 2013
About 80% of Continuing Care Retirement Communities (CCRCs) in the U.S. operate as 501(c)(3) tax-exempt organizations. Over time, what were once fairly humble establishments with strong church or fraternal organization ties, have expanded to serve the needs and interests of their clientele. In some instances, the facilities and amenities are now distinctly "high end," operating with lighter affiliations to religion or other charitable groups. Increasingly, for-profit management companies are hired to provide the day-to-day services.
Understanding the reasons to exempt CCRCs from federal income taxes takes a bit of history. For example, in 1972, the IRS issued Revenue Ruling 72-124, noting that providing for the "special needs of the aged has long been recognized as a charitable purpose" for Federal tax purposes. As such, a CCRC was viewed as relieving the distress of aged persons by providing for the primary needs of such individuals for housing, health care, and financial security. Thus, a CCRC could be treated as tax exempt under Section 501(c)(3) of the Code as an organization organized and operated exclusively for charitable purposes.
State and local tax authorities, however, may employ a more exacting standard on CCRCs in order to qualify for charitable tax exemptions, including property tax exemptions. For a thoughtful analysis of the different standards, see "The Commerciality Doctrine as Applied to the Charitable Tax Exemption for Homes for the Aged - State and Local Perspectives," by Professor David Brennan (Kentucky Law), published in Fordham Law Review in 2007, and still very relevant.
Tuesday, November 26, 2013
From WBUR public radio in Boston Massachusetts, a story and podcast on "at-home funerals."
For a number of years I have invited an attorney with expertise in alternative funerals to speak to my classes. In fact, that is how I first learned that Costco carries urns and caskets (with a choice of standard or expedited shipping -- which strikes me as a trick question). As outlined by WBUR in the article, there is a surprising amount of freedom, if that is the right word, in the law of many states for families to choose informal funerals and burials.
Hat tip to Ann Murphy at Gonzaga Law for sharing this link. Our readers definitely are the key in helping to make this a "full service" blog!
Saturday, November 23, 2013
Residents of a nursing home in Pennsylvania overcame an interesting challenge to their votes during a November 5 election, but it took a court hearing to get that result. State Court Judge Joseph Cronin in Delaware County, outside of Philadelphia, ruled in favor of the seniors on November 20.
Background: A Pennsylvania poll-watcher challenged a number of absentee ballots cast by residents of a nursing home in the November 5 election, reportedly on the grounds that "various types of handwriting" appeared on the voters' applications to vote by absentee ballot or on the envelopes they used to cast the absentee ballots. Of course, absentee ballots may be important for individuals unable to travel easily to the polls.
Under Pennsylvania law, voters are entitled to notice and an opportunity to contest the challenge before the county Election Board. However, apparently none of the residents at Broomall Rehabilitation and Nursing Center were notified of the November 11 Election Board hearing, although a "subpoena was delivered to a member of the nursing home staff by a Pennsylvania constable," according to the Daily Times. The Election Board then ruled 2 to 1 in favor of the Republican poll-watcher's challenge on ballots by 61 of 67 residents of the nursing home, with the vote splitting along party lines.
Ultimately, 14 of the residents then retained an attorney and filed a formal court appeal, resulting in the ruling in their favor. They did not, however, testify or even appear at the court hearing, which apparently focused on procedural errors in the ballot challenge.
I would like to think that someone on the defense side of the case had a moment of pause, when they learned the judge assigned to the case was a senior judge. In my experience, senior judges are not terribly receptive to arguments that appear to presume a lack of mental capacity based on age. On the other hand, I suppose one could also ask why ALL of the residents who cast challenged absentee ballots were not a part of the court appeal?
Tuesday, November 19, 2013
This semester in Penn State's Elder Law class, I encouraged students to write one of their two required short papers on some aspect of the "future of elder law," in the largest sense of that phrase. Several students examined technology and aging, including use of video technology to monitor care or provide tracking of medication or movement. One student's paper is about due process implications of monitoring for staff and family members.
The future is now, of course, in the world of video technology, especially in a CCTV world of almost constant surveillance. The New York Times reports another dramatic example of abuse as caught on "granny cams" used in a nursing home. In "Watchful Eye in Nursing Homes," writer Jan Hoffman details examples of abuse bordering on torture caught on video at an Oklahoma nursing home.
The article points to the trend in state legislation or regulations expressly authorizing video monitoring, laws that attempt to strike a balance between potential rights of privacy and safety:
"On Nov. 1, propelled by the outcry over the Mayberry case, Oklahoma became the third state — along with New Mexico and Texas — to explicitly permit residents in long-term care facilities to maintain surveillance cameras in their rooms. In the last two years, at least five states have considered similar legislation. Although some states have administrative guidelines for electronic monitoring, most legislative efforts have stalled because of questions about liability and, in particular, privacy rights, raised by facility owners, unions, elder care lawyers and families."
Our friend and colleague, Nina Kohn, elder law professor extraordinaire at Syracuse Law, is quoted in the article on the need for caution in implementing surveillance.
Monday, November 18, 2013
A number of years ago I attended a Philadelphia program on litigating personal injury disputes arising in long-term care. An interesting panel of attorneys on both sides of the disputes addressed what was then an emerging trend of state legislatures passing laws that barred or restricted enforcement of "mandatory arbitration" clauses included in nursing home admission agreements. At least one national trade group for nursing homes had actually adopted a policy against predispute mandatory provisions, responding to the public's perception of such clauses as "unfair."
Fast forward to February 2012, when the Supreme Court ruled that a West Virginia statute that barred pre-dispute mandatory arbitration provisions in nursing home contracts violated the Federal Arbitration Act. The brief, per curium ruling in Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012), was viewed as a setback for personal injury attorneys representing plaintiffs in personal injury cases.
Maryland Elder Law attorney Ron Landsman takes "A Second Look at Marmet Health Care Center: State Contract Law Provides Defenses to Nursing Home Contract Arbitration Clauses," his new piece for the NAELA Journal, going deeper into the implications of the Supreme Court's finding of federal preemption, as well as its remand for further findings on questions of unconscionability under the common law.
Ron points to the importance of careful planning by families prior to signing any nursing home agreement. His article highlights the role of attorneys, especially elder law specialists, in advising families of the potential significance of arbitration terms. He urges proper planning begins even earlier, when deciding how broadly to phrase powers of attorney or advance health care directives, and whether to give an agent the power to waive traditional litigation He concludes:
"Marmet leaves intact all of the state law approaches to attacking the formation of the contract, which gives the arbitration clause its power. Through a carefully drafted estate plan, thought about who signs at admission or after, Elder Law attorneys have a few options for maintaining their clients’ rights."
Thursday, November 14, 2013
Nursing homes, contracts, agents and payment demands. I'm seeing interesting cases and laws coming out of Connecticut. The topic is whether (and when) liability arises for an individual, often a son or daughter, who admits a parent to a nursing home, if a gap arises in payment for that parent's care. Here are a few highlights from the Nutmeg State:
- In early 2013, the Supreme Court of Connecticut upheld a judgment in favor of a defendant/daughter, who was sued for breach of contract by her father's nursing home. The judgment included attorneys' fees for daughter under a state law governing the rights of successful consumers in disputes with commercial parties. The daughter had signed documents at the time of her father's admission, as a condition of admission. The nursing home's contract attempted to establish contractual obligation for the signer as a responsible party "if the responsible party has control or access to the patient/resident's income and/or assets, including but not limited to making prompt payment for care and services...." Under the court's ruling, however, this clause did not bind the daughter to pay for her father's care, as she was neither an appointed agent under a power of attorney, nor a court-appointed guardian. Aaron Manor, Inc. v. Irving, 57 A.3d 342 (Conn. 2013).
- Digging deeper into the Aaron Manor case, I looked to see why there was a payment gap. What wasn't clear from the Aaron Manor decision by the Connecticut Supreme Court, was the potential importance of the role played by another adult, the father's son. As reported in greater detail at the intermediate appellate level, the son (and thus also brother to the daughter/defendant discussed above) did have a power of attorney and control over the father's accounts, had not signed the admissions contract, and had made transfers (including gifts) to himself and his sister from those accounts. Eligibility for Medicaid was not discussed in the intermediate court's case history. My best guess is the son declined to pay the nursing home bills for dad (and the history suggests a gap of a couple of months may have been connected to terms of some private insurance, so perhaps there was a separate insurance coverage dispute), but the son wasn't sued because he hadn't signed that nursing home contract. Connecticut has a filial support law, by the way, but it is not comparable to Pennsylvania's filial law. Aaron Manor, Inc. v. Irving, 12 A.3d 584 (Conn. App. 2011).
- Here is where things get interesting (spicier?) -- at the Legislature. Effective on October 1, 2013, the Connecticut Legislature amended state law to permit a nursing home to collect a debt for unpaid care for a resident from third parties, if that resident has been denied Medicaid because of one or more transfers by or to those parties, causing ineligibility. The Connecticut law provides that nursing home collection suits may be filed against the "transferor" or the "transferee." A successful nursing home may also seek attorneys' fees. Sections 128-130 of Connecticut Public Act 13-234.
It looks like the statutory change is a direct response to the type of facts represented in the Aaron Manor case, and would give nursing homes potent options for the future, as the son was a transferor (and transferee) and the daughter was a transferee. I have written about liability issues arising out of nursing home contracts, including discussion of an earlier Connecticut case, Sunrise Healthcare Corp. v. Azarigian, 821 A.2d 835 (Conn. App. 2003), a case that was distinguished by the courts in analyzing Aaron Manor. (In fact, the last few years I've spent so much time reading contracts and cases connected to financial responsibility for long-term care, that I finally volunteered to add Contract Law to my teaching package.) No secret that I find this area to be a fascinating juncture of substantive concepts, requiring analysis of health care policy, family law, contract law, agency law and elder law (which includes, of course, Medicaid law).
How did the Legislative change come about? According to a report by Wiggin & Dana, a Connecticut law firm representing providers, the changes to Connecticut law "grew out of a multiyear effort by LeadingAge Connecticut to convince the General Assembly to address the need to assist nursing homes facing bad debts. . . . Although the elder law bar and legal services advocates initially opposed the legislation, the Co-Chairs of the General Assembly's Human Services Committee . . . led a successful mediation process resulting in compromise language that received the support of all parties."
In writing about the new Connecticut Law, ElderLawGuy Jeff Marshall comments that this may be part of a "trend to make perceived 'wrongdoers' . . . liable for unpaid nursing home costs." Further he predicts such an approach, which is an alternative to liability under filial support laws, could "spread to other states."
See also the Elder Law Prof Blog's earlier post: "New Hampshire Establishes Liability for Agents Who Fail to File Timely Medicaid Applications."
Feel free to comment below on your views on this potential trend.
Sunday, November 10, 2013
So-called "Slayer Rules" bar a murderer from inheriting from his victim, and often apply not only to intestate succession but also to gifts made under wills or nonprobate transfers. The bar may arise by common law, often rooted in equity, or statute.
As Harvard Law Professor Robert Sitkoff summarizes well in his 9th edition (Dukeminier) of Wills, Trusts & Estates, "Nearly every state has enacted a statute dealing with the rights of a killer in the estate of a victim, but the details of these statutes vary considerably and often leave gaps to be resolved by the courts."
However, states have also been expanding the notion of "no profit" from wrongdoing to include abusers -- and theories regarding elder abuse appear to be part of the reason.
For example, in a 2013 case, the Washington Supreme Court analyzed application of a 2009 amendment of that state's slayer statute to include "abusers," defined as "any person who participates, either as a principal or an accessory before the fact, in the willful and unlawful financial exploitation of a vulnerable adult." The court concluded in a 5-4 decision that the date of filing of a petition to declare a beneficiary an abuser serves as the trigger for timing questions.
The Washington case involved allegations made by three surviving children against their father's second wife. The father was in his late eighties when he married the younger woman, who was younger by fifty years. The history of the case includes a discussion of the father's dementia, and allegations the wife made large transfers to herself and others before his death. See In re Estate of Haviland, 301 P.3d 31 (Wash. 2013).
In 2012, Michigan amended its slayer statute to include abusers, as part of a series of changes to state laws reportedly intended to provide better protection for elderly and vulnerable adults. Cooley Law Professor Linda Kisabeth analyzes the Michigan changes in her recent article "Slayer Statutes and Elder Abuse: Good Intentions, Right Results? Does Michigan's Amended Slayer Statute Do Enough to Protect the Elderly?" in 26 Quinnipiac Prob. L. J. 273 (2013).
And for an interesting alternative take on slayer laws in their more traditional application, to "murderers," see the 2013 article by Professor Carla Spivack (Okla.City Law), "Killers Shouldn't Inherit From the Victims -- Or Should They?"
Hat tip to Professor Harvey Feldman for pointing the way to the Washington case.
November 10, 2013 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, October 28, 2013
The fall meeting of the National Continuing Care Residents' Association (NaCCRA) in Dallas on October 27 was attended by CCRC residents from at least a dozen states, including Arizona, California, Connecticut, Florida, New Jersey, North Carolina, Oregon, Pennsylvania, Texas, Virginia, Washington, and D.C.
The morning workshop focused on "Imagining CCRCs of the Future," starting with round table discussions that identified 25 topics deemed important to the future of the industry, including planning for consumers who may have less financial resources while also seeking greater services; interest in building more diverse communities; and the importance of training for emerging leaders. From the broad list, the group identified 7 priorities for NaCCRA in the coming year and beyond, accompanied by specific action recommendations. Stay tuned!
In the afternoon, members of NaCCRA were part of a panel discussion on "Resident Engagement" led by Ron Herring, the President-Elect of NaCCRA. The panelists were Ellen Handler, President of ORANJ, the residents' organization in New Jersey; Marilyn Kennedy, Chief Operating Officer for Episcopalian Senior Communities in the San Francisco area, and Mary Ann Colwell, a resident at St. Paul's Towers, one of Episcopalian Senior Communities' CCRCs.
Handler presented highlights from successful advocacy on the part of the New Jersey group in achieving state legislation requiring resident membership on governing boards of CCRCs, and, most recently, mandating threshold rights for residents in "independent living." Kennedy and Colwell talked about the 10 year history of progress in their communities, building multiple pathways for residents to participate in the life of their communities, including working with provider representatives to plan for the future. Kennedy discussed the role of California state law that helped to frame the provider/resident discussions.
The audience included provider representatives. During the Q & A that followed the panelist presentations, the interaction generated observations about effective roles for residents on governing boards and key board committees (such as finance and quality), including success stories from communities. Several people remarked on the "process" of resident engagement, as it takes time for true engagement to become engrained as the culture of the community.
The NaCCRA meeting was part of the opening day action at the national meeting of LeadingAge, the national trade group for nonprofit senior living providers, which runs through October 29.
Friday, October 25, 2013
Earlier this week, I posted an update about state law reform movements regarding Powers of Attorney, including the Uniform Power of Attorney Act of 2006 (UPOAA), which so far has been adopted in 13 states and is currently under consideration in Pennsylvania and Mississippi.
I've been getting very interesting responses, and I'll try to capture some here in the blog as I have time. To start things rolling, I'll share some thoughtful comments from Robert Slutsky, a Pennsylvania attorney who focuses his practice on elder law, estate planning and administration, guardianships and real estate . He's also a '92 grad of the Dickinson School of Law, so he's been doing this awhile. He gave me permission to excerpt his emails.
In writing to me, Robert said he was adopting the role of devil's advocate. Certainly turn-around is fair play for graduates with law professors! Based on his experiences, he worries about law reform efforts that could make POAs less useful to the majority of people who use them properly. Restrictions could be penalizing the wrong people. As he puts it succinctly, "Occasional problems with POAs result from evil people who know what is right and wrong and choose to do wrong.... Trying to solve a problem caused by bad people by restricting those who use POAS properly is ineffective and counterproductive."
Robert also serves as the solicitor for a county adult protective services unit, and he does see instances of financial exploitation, although he says he sees more cases of caregiver neglect or self neglect. That observation is consistent with annual reports in Pennsylvania and elsewhere. Unfortunately, data on abuse is not regularly collected or evaluated on a national level, as discussed in the July 2013 GAO Report to Congress on "Elder Justice: More Federal Coordination and Public Awareness Needed."
Robert Slutsky says that even when he sees financial abuse, it "rarely" involves POAs as the tool to victimize older persons. He also warns that while a prosecutor may view a case of a child using a elderly parent's money as "abusive," a full history may show a long pattern of parental approval or tacit permission, and thus with families it can often be a "gray area" regarding permitted use.
Thank you, Robert.
Readers, feel free to add your comments, either to the original post or below.
Wednesday, October 23, 2013
Powers of Attorney (POAs) are a key tool in estate planning and Medicaid planning. A thoughtfully drafted POA can avoid the need for a guardianship, for example, and thus avoid delays, embarrassment and greater expense for a principal who later becomes incapacitated.
Unfortunately, POAs can also be a tool for misuse by agents who can't resist the temptation to help themselves, rather than their principals. For a number of years, states have been struggling to balance utility against risk.
In Pennsylvania, for example, prior to 1999, statutory law governing POAs permitted principals to grant agents the authority to make gifts. Civil case law interpreted such gift-giving authority, unless expressly limited, as permitting agents to make "self-gifts." Even if the agent's self-gifting put the principal in serious financial jeopardy, some prosecutors declined to prosecute. Following a series of troubling reports and cases, in 1999 the Pennsylvania legislature amended state law to declare that all agents appointed under POAs were subject to specific fiduciary duties. The change also imposed a statutory presumption of limited gift authority (tied to annual federal gift tax exclusions) unless the principal expressly granted the agent "unlimited" gift authority.
Concern about misuse of powers of attorney has grown on a nationwide basis,especially after high profile cases such as that of New York heiress Brooke Astor, where her son used a POA to sell off artwork and other valuable property, while reportedly keeping his mother isolated from friends.
Even before the Brooke Astor case came to light, academics, legislators, judges and practitioners worked together in the Uniform Law Commission to propose amendments to statutory authority governing POAs, resulting in the Uniform Power of Attorney Act of 2006 (UPOAA), which superseded prior uniform law proposals. The UPOAA attempts to rebalance risk and power, or as the Commission summarizes:
"The UPOAA seeks to preserve the durable power of attorney as a low-cost, flexible, and private form of surrogate decision making while deterring use of the power of attorney as a tool for financial abuse of incapacitated individuals. It contains provisions that encourage acceptance of powers of attorney by third persons, safeguard incapacitated principals, and provide clearer guidelines for agents."
Adoption of the UPOAA has been fairly slow. As of today, only 13 states plus the U.S. Virgin Islands, have enacted the UPOAA.
In 2013, legislatures in Mississippi (H.B. 468) and Pennsylvania (S.B. 620) are considering adoption. In Pennsylvania, the need for clarification has been heightened by reaction to the Pennsylvania Supreme Court's opinion in Vine v. Commonwealth, 9 A.3d 1150 (Pa. 2010), where a POA was signed by a hospitalized principal, and used by the husband/agent to make self-benefiting changes to his wife's retirement accounts, while his wife was incapacitated.
Court practice and enforcement policies on POAs, guardianships and elder abuse are also under consideration by the Pennsylvania Elder Law Task Force (2013), chaired by Justice Debra Todd of the Pennsylvania Supreme Court.
In Pennsylvania, views on what changes to POA laws are necessary differ in small or large ways among bankers, estate attorneys, elder law attorneys and district attorneys, just to name a few of the interested parties.
The scholarship of law professors has been important to the debate over proper use of POAs, including two articles by Valparaiso Law Professor Linda Whitton, "Durable Powers of Attorney as Alternatives to Guardianship: Lessons We Have Learned" and "The New Power of Attorney Act: Balancing Protection of the Principal, the Agent and Third-Persons."
By the way, when I first drafted this post, I titled it "The Problem(s) with Powers of Attorney." Overnight, I rethought that title, because many POAs are never abused and agents frequently go above and beyond in performing uncompensated services, including financial management, for aging principals. I therefore retitled the post. What law reform movements are attempting to do is reduce the potential for abuse. Human nature being what it is, there is probably no law that can prevent abuse by a wrongly motivated agent. Who to trust with powers granted under a POA will always be an important matter for families to consider and discuss with their legal and financial advisors.
October 23, 2013 in Advance Directives/End-of-Life, Current Affairs, Estates and Trusts, Ethical Issues, Medicaid, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0) | TrackBack (0)
Monday, October 21, 2013
On October 16, New Jersey Governor Chris Christie signed into law a detailed "Bill of Rights" for residents of New Jersey's Continuing Care Retirement Communities (CCRCs).
Key features of the law (S2052/A3132) include:
- clarification of the circumstances under which residents can be transferred from independent living to skilled care,
- the right for prospective residents to have at least 30 days to review mandatory disclosure statements before signing the admission agreement, and
- further specification of the state's right to enforce the law, including sanctions or fines.
The new legislation serves to amend New Jersey's Continuing Care Retirement Community Regulation and Financial Disclosure Act, N.J. Stat. Ann. Sections 52:27D-330 through 360. The law was first enacted in 1986, becoming effective in March 1987.
My first reading of the final legislation suggests it covers rights about which even the most paternalistic provider would agree.
ORANJ, the Organization of Residents Associations in New Jersey, was very active in raising resident concerns during the several year process that led to the bill's passage.
Hat tip to David Hibberson for keeping us up-to-date on New Jersey developments. Congratulations to New Jersey CCRC residents on their hard work.
Friday, October 11, 2013
Today I received another telephone call from a stunned adult child living in another state, trying to make sense of papers he'd received, telling him was being sued because there was money due on his parent's nursing home bill. Another filial support case, filed under Pennsylvania's law. As far as I could hear, the son had not done anything wrong, other than trying to figure out why his mother was so deeply in debt even before she went into the nursing home. But Pennsylvania's filial support law -- and most states' filial support laws (see this week's earlier post about siblings sued for filial support in North Dakota) -- does not require proof of fault in order to trigger liability. Kinship of the right degree is all that's necessary for potential liability.
So, once again it was time for me to get out my list of elder law attorneys, to suggest who might be able to help the son.
Experienced Pennsylvania elder law attorneys probably make more money because of the state's unique history of nursing homes suing for filial support. Families need their expertise to avoid even the slightest problem with nursing homes' admission and billing practices. Plus, there is a minefield of eligibility rules associated with Medicaid applications. So you would not think Pennsylvania's elder law attorneys would have time or interest in repealing filial support laws. Wrong. Pennsylvania elder law attorneys are tired of seeing adult children caught in family tragedies, struggling to figure out how to help their parents, without enough money to go around.
Sure, sometimes the nursing home suit is caused by "bad" children, but I hear from a heck of a lot of folks who fall into Pennsylvania's filial support trap without any affirmative misconduct.
Pennsylvania elder law attorneys -- through PAELA, the Pennsylvania Chapter of the National Academy of Elder Law Attorneys -- have taken a stance. They are urging Pennsylvania legislators to repeal the state's filial support law. Details of PAELA's position are set forth by long-time elder law guru Jeff Marshall on his Elder and Estate Planning Blog. And if you want another way to stay on top of developments, check out ElderLawGuy on Twitter. Yes, Jeff's that "guy," too!