Tuesday, September 25, 2018

Iowa Supreme Court Case Demonstrates Significance of "Vulnerable Person" Standards in Elder Abuse Cases

Protection laws may be predicated on proof that victims were unable to protect themselves because of a "mental or physical condition."  Or sometimes the laws define a right to protection as arising when the person is of a certain age and "because of that age" is unable to protect him- or herself. 

The Iowa Supreme Court explained Iowa's vulnerable person exploitation standard in a recent case arising from a request for an order protecting a 69 year-old woman from her son:

We find the following elements need to be proved by a person claiming elder abuse to qualify as a vulnerable elder as defined in  [Iowa Code] section 235.F.1(17): (1) The person must be sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition. Id. The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder as defined in section 235F.1(17). . . . 

 

The district court viewed the testimony and concluded Chapman's age alone made her a vulnerable elder.  In our de novo review, we give weight to the district court's finding and find Chapman's age made her unable to protect herself from elder abuse.  She gave all her assets to her children.  She was unemployed with a fixed income.  [Appellant son] demanded $35,000 from her to stay in the mobile home [she had originally owned].  At her age, she was unable to pay him.  She voice a concern that she was to old to handle the eviction notices [he] was giving her. 

 

In summary, [the son] took advantage of Chapman due to her age and financial condition.  The evidence supports a finding Chapman was a vulnerable elder.  The purpose of the elder abuse statute was to allow our elderly population to seek relief from actions such as Wilkinson's without the expense of a more costly and time consuming action that others argue are appropriate under the circumstances.  

For the full opinion, see In re Petition of Chapman, 890 N.W. 2d 853 (Iowa 2017). 

September 25, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 23, 2018

Kicked Out of ALF?

My colleague and dear friend, Professor Mark Bauer, sent me this story from CNN.   Kicked out of assisted living: What you can do focuses on the situation where "[a]cross the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that 'we can't take care of you any longer.'"  This happens more often than you think. The article cites  2016 statistics thath show "[e]victions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded -- a number that experts believe is almost surely an undercount."

The article notes often there is little recourse, especially with regulations at state levels varying.  The reality?

While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn't follow a facility's rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident's needs exceed its ability to provide care -- a catchall category that allows for considerable discretion.

Unlike nursing homes, assisted living facilities generally don't have to document their efforts to provide care or demonstrate why they can't provide an adequate level of assistance. In most states, there isn't a clear path to appeal facilities' decisions or a requirement that a safe discharge to another setting be arranged -- rights that nursing home residents have under federal legislation.

Then there are situations where the ALF takes the position they can't care for the resident any longer, or transfers the person to the hospital and refuses to allow them to return on discharge. As is often the case, the article notes the ALFs offer justifications for the evictions.

The article suggests these tips for prospective residents and families:  "ask careful questions about what the facility will and won't do... What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?... Review the facility's admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they've made ... in writing." Get a doctor's evaluation when the ALF says it can't provide the care, contact the long-term care ombudsman, file suit, seek relief under the ADA and look at adjusting expectations.

The article is accompanied by a video.  Check it out. Thanks for Professor Bauer!

September 23, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Friday, September 21, 2018

The Nitty Gritty Details of Adult Guardianship Reform (Part 3)

This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.  

Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here.  A key amendment is now under consideration, in the form of AO9253.  These amendments:  

  • Require counsel to be appointed for all allegedly incapacitated persons;
  • Require all guardians to undergo a criminal background check;
  • Require professional guardians to be certified;
  • Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).

Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates. 

A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf.  His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:  

The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.

 

As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).

The devil is in the details for any legislative reforms.  It is often an "all hands on deck" effort to secure passage, especially in an election year.  

Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?   

September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 20, 2018

Focusing on the Bigger Picture in Adult Guardianship Reform (Part 2)

Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws,  here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?

Troubled histories have emerged across the nation.  Public concern has grown around the need for more careful consideration of the roles played by guardians.  For example, events in recent years have highlighted the following problems:

 

  • In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018. 
  • In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals.  This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
  • In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.   

 

The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians.  The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.

 

While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards.  Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System.  The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries. 

Continue reading

September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 19, 2018

Issue Brief: Sexual Abuse in Nursing Homes

The National Consumer Voice for Quality Long Term Care has released a new issue brief, Sexual Abuse in Nursing Homes: What You Need to Know. The brief discusses the types of sexual abuse, those more likely to be victims, and information about the perpetrator.  The brief notes the residents rights to have consensual sex.  It also offers a checklist of steps to take if sexual abuse is suspected as well as a list of helpful resources.

September 19, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Statutes/Regulations | Permalink

Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)

Pa State CapitolFor the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature.  Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018. 

 

Today, let's begin with background.  First, here is the status of pending legislation and the timetable that could lead to passage:

 

Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws.  The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission.  The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16).  The current bill was approved and voted out of Senate committee in June 2018, but then tabled.  Although the schedule is tight, there is still time for action by both house before the end of the session in November.   If not fully passed and signed this year, a new bill must be introduced in the next legislative session.

 

The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has  scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.

Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:

In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force. 

 

Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60.  The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%.  Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.

 

When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”  

 

The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes.  Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:

  • Guardianship monitoring is weak, if it occurs at all.
  • Training is not mandated for professional or non-professional guardians.
  • Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
  • The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.

 

The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.

 

Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts.  The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians.  These rules are scheduled to become fully effective by July 2019. 

    

Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop

 

Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules.  Key substantive reforms require legislative action.  Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor).  After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.

Continue reading

September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, September 17, 2018

A Closer Look -- through the eyes of an experienced actuary -- At Long-Term Care Insurance

Jack Cumming, a California CCRC resident, frequently comments on Elder Law Prof Blog posts, bringing to bear his deep expertise in financial planning matters and his equally engaged commitment to historical accuracy in a wide variety of issues. Jack is a Fellow of the Society of Actuaries, and a Certified Aging Services Professional by Examination. During what I might call Jack’s “official career” as a professional actuary, he served as an independent consulting actuary for life and health insurance operations, and before that as a corporate officer and chief actuary for insurance companies. 

I first came to know Jack during what I’ll call his “second” career.  Jack helped many, including me, understand concerns about actuarial soundness issues in Continuing Care Retirement Communities. He came to his specialized expertise in CCRCs in a unique way, by moving to a California CCRC with his wife and discovering issues that can benefit from actuarial analysis. Over the last 12 years, Jack has advised CCRC residents and providers, as well as their organizations across the nation.

Jack recently commented on an item I posted on September 12, that described a particular history of poor actuarial decisions contributing to failure of a large Pennsylvania long-term care insurance company. In that post, I also reported on a new hybrid type of long-term care product, announced by New York Life Insurance Company.  Jack’s response was, as usual, so insightful that, with Jack’s permission, I am posting his commentary here, elaborated by him, as a blog post in its own right. 

Jack writes:

A number of thoughts come to mind when reading the recent Elder Law Prof Blog post on long term care insurance (LTCi).  The Elder Law post lists a perfect storm of what turned out to be foolhardy expectations.  Morbidity was underestimated, so were contract lapse rates and mortality.  Anticipated investment returns turned out to be overstated, medical and care costs escalated, and efforts to raise premiums without triggering shock lapses proved insufficient.  The result for the industry has been devastating, as anyone who has been close to LTCi, is well aware.  Fortunately, LTCi was a small part of the business of many insurers offering the product, so losses were absorbed.  Penn Treaty, an LTCi specialist company, was not so lucky.

 

Now, with the benefit of hindsight, it thus appears that there were significant and material optimistic misjudgments made in bringing LTCi to the market.  First, the data used for the initial pricing were not sufficiently vetted. Pricing actuaries used what data they could find but, for the most part, they failed to take into account the fact that the very existence of such insurance, then being introduced for the first time, would make it more likely that people would use the benefits.

 

Moreover, the opportunity for LTC providers to receive payments promoted the growth of the provider industry to deliver services that the insurance would cover. Thus, historical data from the time before there was insurance was misleading.   Since the products lacked incentives for policyholders, or those offering services to them, to restrain their use, it was predictable that people would seek to make the most of their coverage.  And they did and continue to do so.

 

Long Term Care Insurance developed originally to give the sales agents of the large life insurance companies a product that they could sell as part of a product portfolio centered on the sale of life insurance.  Such a portfolio, in addition to life and long term care insurance, often included disability income and health insurance.  Most of the pricing actuaries who were involved in the early development of LTCi products were life insurance specialists influenced by life insurance concepts. There’s little discretion or volunteerism about dying, so mortality data used in setting life insurance premiums tend to be relatively stable and predictable. The consequence is that underwriting and claims in large life insurance companies are principally administrative, e.g. for claims, confirm the death and send a check. More subjective risks, such as disability income (DI) insurance and LTCi, require active management over the duration of a claim by highly skilled executives experienced and specialized in those particular undertakings.

 

Continue reading

September 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, September 13, 2018

State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response

Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.   

News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires.  Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan. 

As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017.  The complaint also seeks lifetime bans for  individual administrators.  While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.  

The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present.  The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have  keys.  It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents."  Family members of the residents and emergency responders conducted the remaining evacuations at both locations.

The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article)  to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly."  As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans.  It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living.   The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice." 

The state's suit comes a few days after news of a reported settlement of a civil suit  for undisclosed terms, filed on behalf of 17 residents of Villa Capri.  

September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, September 12, 2018

Will New Long-Term Care Products Fare Better than "Traditional" Policies?

Last week, students in my Elder Law class at Dickinson Law had the benefit of a fascinating, detailed presentation by Pennsylvania's Deputy Commissioner of Insurance Joseph DiMemo about the history of insolvency for Penn Treaty American Network and American Independent Insurance Company as sellers of long-term care insurance policies.  In 2009, the State took the reins as the receiver for the two companies' administration of more than 126,000 policies sold nationwide. 

From the history, I would summarize reasons for failure of long term care insurance in its "traditional" form as including the following:

  1. Selling products with a promise or at least a strong expectation of level premiums, especially in the early years of the industry.  While contract language permitted companies to seek rate increases, the companies often delayed asking for increases or were frustrated by states that refused to grant requested increases;
  2. Assumptions made about "lapse" rates for policyholders that proved to be inaccurate;
  3. Assumptions made about "interest" rates for invested premiums that proved to be inaccurate, even before the 2008-10 financial crisis;
  4. Assumptions made about lower morbidity and higher mortality that proved not to be accurate for policyholders overall;
  5. The continued use of invalid assumptions about future premium rate increases. 

In light of this tour through history, I was interested to read about New York LIfe Insurance Company's description of its "new and innovative long-term care insurance product" in its press release dated September 5, 2018:  

A new long-term care solution announced today by New York Life, NYL My Care, promises to make the purchase of long-term care insurance simpler and more affordable. The innovative product features design concepts familiar to purchasers of other types of insurance, including a deductible and co-insurance, and offers the benefit of a dividend, which can help offset future premiums. NYL My Care clients will also benefit from the peace of mind that comes from working with a mutual life insurance company with the highest available financial strength ratings.

 

“New York Life is committed to helping people plan for the future, which includes protecting themselves and their loved ones from the financial burden of an extended health care event,” said Aaron Ball, vice president, New York Life Long-Term Care. “NYL My Care’s simpler, first-of-its-kind product design will help more people understand, access and afford the protection they need against the potential cost of long-term care.”

 

NYL My Care covers a wide range of long-term care needs, including home care, community-based care and facility care, and offers four pre-designed plan levels ... bronze, silver, gold and platinum. 

For more on so-called "hybrid" or "asset" based products that couple long-term care benefits to annuities or life insurance polices, read New Life Insurance Brings New Innovations to Long-Term Care Insurance Market from Forbes.

September 12, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Tuesday, September 11, 2018

How Lack of Transparency Harms "Senior Living" as an Industry

I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance.  The questions I've received are a reminder that "transparency" is a big issue.  As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable."   I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities.  The problem is that many prospective clients do not know who they can trust, and many end up trusting no one.  They end up not making any advance plan.

For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan.  Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership."  If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites.  At least as of the time of my writing this blog post, there's only "good news" on the company's website.   

The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes.  I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name.  But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.  

Some providers will say that the problem is that "bad news" is over-reported.  I don't think that is actually true.  Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options.  Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers.  Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.  

States, however, have unique opportunities to learn from their roles as receivers for troubled operations.  Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success?  And if not the regulators, why not have the industry itself publish standards of financial health.

September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Monday, September 10, 2018

Even in Paradise: An Accusation of Elder Exploitation

Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.   

The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.

 

 Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.

 

A key court hearing in a legal fight over the trust is scheduled for Monday.

 

Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.

 

As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.

 

Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.

For more, read Foundation Board: Protect Hawaiian Heiress' Millions. 

While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger.  Another article describes Ms. Worth as a "longtime caregiver."  See A Cautionary Story of Elder Financial Abuse.  Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice.  See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.

September 10, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 9, 2018

ECHO MOLST

i was reading about ECHO MOLST the other day. ECHO MOLST is part of Project ECHO

a lifelong learning and guided practice model that revolutionizes medical education and exponentially increases workforce capacity to provide best-practice specialty care and reduce health disparities. The heart of the ECHO model™ is its hub-and-spoke knowledge-sharing networks, led by expert teams who use multi-point videoconferencing to conduct virtual clinics with community providers. In this way, primary care doctors, nurses, and other clinicians learn to provide excellent specialty care to patients in their own communities using an all-teach all-learn model.

Project ECHO links expert specialist teams at a “hub” with primary care clinicians and other professionals in local communities. Primary care clinicians, the “spokes” in the ECHO model, become part of a learning community, where they receive mentoring and feedback from specialists. Together, they manage patient cases so that patients get the care they need. Although the ECHO model makes use of telecommunications technology, it is different from telemedicine.

What makes this training unique?  According to the website, "Project ECHO’s innovative approach will support the current and future needs of our clinicians and system leaders. ECHO MOLST will provide long term, sustainable MOLST education that will improve the competency and capacity of clinicians and improve adherence to patient preferences at end-of-life." The video conference 8 week training is set to start on September 13, 2018 .

September 9, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink

Tuesday, September 4, 2018

Podcast about Brooke Astor Case

Thanks to Julie Kitzmiller for sending me the link to a podcast at AARP on the Brooke Astor case.   Brooke Astor: Famous Socialite Robbed is one in a series (this one is #18) of podcasts on "the Perfect Scam".   The podcast runs about 25 minutes. Here's a description:

A prominent philanthropist and the epicenter of the New York society scene, Brooke Astor lived a tumultuous but glamourous life. Left a fortune by her third husband, Vincent Astor, Brooke planned to live out her later years at her country estate. But when Brooke’s son refuses to let her do so, then sells his mother’s favorite painting (worth over $30 million), grandson Philip decides to step in. Philip’s efforts to return his grandmother to the country home she loved would uncover one of the most prominent cases of financial elder abuse in U.S. history, with millions lost and a family torn apart.

A time-coded transcript accompanies the podcast and is available here.

 

September 4, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink

Monday, August 27, 2018

New Jersey Governor Signs New Law Helping CCRC Residents Get More Timely Refunds of "Refundable" Fees

Back in April, I posted here about legislation pending in New Jersey, inspired in part by litigation.   Residents of Continuing Care Retirement Communities  in New Jersey were advocating for mandatory limits on how long a CCRC could hold "refundable" entrance fees after the death or departure of a resident from a facility.  New Jersey CCRC residents are well-organized and they have earned the ear of legislators.  Final passage on an amended version of  Assembly Bills 2747/880 occurred on July 1.

On August 17, 2018, New Jersey Governor Phil Murphy signed Public Law 2018, c.98 into law.   The old New Jersey Law required CCRCs to repay refundable fees, but the refunds were not mandated until 60 days of "the unit" being resold.   Data collected by residents and disclosed during litigation revealed that some facilities were  holding refundable fees for more than a year after the vacating of the particular unit, while marketing and selling "other" units first.  In essence, the companies preferred to sell new units or other units unencumbered by a refund obligation, to maximize their income and asset picture. 

The new law creates a preference list for the 60-day refunds, a type of "first out, first repaid" system.  Key language of the new law provides:

"In the case of a continuing care agreement that provides for a refundable entrance fee, the facility shall assign the vacated unit a sequential 'refund' number among all available units with refundable entrance fees.  Any balance [due on refundable fees] shall be payable based on the sequential 'refund' number assigned to the unit. . . . "

A compromise among facility owners and residents in the drafting of the legislation permits a facility to apply to the New Jersey regulatory body for CCRCs for permission to use an alternative methodology for making refunds, but "approval shall not be granted unless the facility can demonstrate that the use of the alternative methodology is resident-focused and provides for a more equitable and timely payment of refundable fees." 

This final language appears to be more resident-friendly than an earlier proposed exception, which would have expressly recognized the possibility of conditioning refunds on the resale of "similar" units.   Resident councils will probably need to be careful to review any alternative proposals submitted by their own CCRCs.

The act takes effect in 90 days from date of enactment.   For more on the history of the legislation, see Signed: Bateman Law to Stop Retirement Communities From Taking Advantage of Seniors and Surviving Estate Holders

Current residents did not get a clear win, as the new rules for refunds are mandatory only for CCRC agreements entered into on or after the effective date of the new law.  Nonetheless, congratulations to CCRCs and residents in New Jersey on making changes that better respect the expectations of customers and their families about the use of funds that function, in essence,  as an interest fee loan to the CCRC during the residents' tenure in the facilities.  

August 27, 2018 in Consumer Information, Current Affairs, Ethical Issues, Housing, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Friday, August 24, 2018

Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?

A number of years ago,  a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman.  This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere.  Didn't the father have a right to be a fool in love? 

We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age. 

When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed.  For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story),  with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them.  In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos

When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older.  Or,  we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."

These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood.   I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.

At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.

Continue reading

August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Wednesday, August 22, 2018

Thinking Above The Bad Apples: Elder Law Attorneys Who Have Stolen from Clients

I'm giving a big sigh as I begin to type this particular blog post.  I hate the topic of thieving lawyers, and especially those who hold themselves out as elder law professionals.  But, I also can't ignore the topic.  I keep a notebook of news articles and bar association disciplinary cases on elder abuse involving lawyers and although certainly the bad apples are a tiny fraction of the profession, my notebook is growing. 

The latest news comes from New Jersey, where a high profile lawyer -- who hosted a radio show and taught seminars on elder law -- pleaded guilty in late July in state court to stealing "millions" from clients.  Robert Novy, 66, faces sentencing on September 28, and the AG recommends 10 years in state prison.  

In some ways Novy's history mirrors other cases I've followed more closely in Pennsylvania, as it began with him placing client funds into his firm's trust accounts, accounts which are usually meant to be a temporary spot for use in future client-directed transactions.  At some point he then proceeded to transfer the funds to his own operating accounts, in direct violation of statutory and ethical rules.  Also, counterintuitively, his "mature" age and experience are something I've seen with other attorney fraud cases in Pennsylvania.  Were they always bad apples or did they just stay too long in the bin?  The histories often seem to begin with the lawyer's "promise" to invest the funds for clients, relying on long-years of practice as a sign of reliability, even though, generally speaking, lawyers probably aren't the best source of investment advice. In fact, the Pennsylvania Supreme Court adopted new rules in 2014 that placed restrictions on attorneys' involvement in "investment products." 

In another way, Novy's history is unusual.  I've found that most of the big ticket thefts by attorneys from older clients involve sole practitioners.  They seem like lone wolves, operating without traditional checks and balances.  Novy, who called his firm Robert C. Novy & Associates, had other attorneys in the firm. Sadly, it seems that Novy may not have been operating solo in his fiduciary crimes, as an "associate" attorney who had also been practicing law for many years was charged with similar crimes involving client funds.  I could not find the outcome of those charges, or whether the charges are still pending. 

In these New Jersey cases, the charges date back to 2015 and 2016. I suspect delays in bringing the cases to trial or plea may be tied to efforts to "permit" the lawyers some opportunity to repay the defrauded clients by liquidating their personal assets; ultimately, however, going forward with the criminal charges (rather than "mere" disciplinary sanctions) suggests the reimbursement opportunity was unavailing.  

August 22, 2018 in Crimes, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 20, 2018

NYT: Same Sex Couple Challenge CCRC Admissions Policy as Discriminatory

From wedding cakes to retirement communities.  The dissonance here starts from the first mention of the name of the community, "Friendship Village."  From the New York Times's Paula Span, comes news of a challenge to an admissions policy as applied to an older, same sex couple seeking to move into a "faith-based" nonprofit Continuing Care Retirement Community or CCRC (also known as Life Plan Communities) near St. Louis:  

The community seemed eager to recruit them, too, offering a lower entrance fee if they signed an agreement promptly. So they paid a $2,000 deposit on a two-bedroom unit costing $235,000. They notified their homeowners association that they’d be putting their house in Shrewsbury, Mo., on the market and canceled a vacation because they’d be moving in 90 days. Ms. Walsh contacted a realtor and began packing.

 

Then came a call from the residence director, asking Ms. Walsh the nature of her relationship with Ms. Nance, 68, a retired professor.

 

Natives of the area, they’d been partners for nearly 40 years. Before the Supreme Court legalized same-sex marriages across the country, they’d had a harborside wedding in Provincetown, Mass.  “I said, ‘We’ve been married since 2009,’” Ms. Walsh replied. “She said, ‘I’m going to need to call you back.’”

 

Last month, the women brought suit in federal court, alleging sex discrimination in violation of the federal Fair Housing Act and the Missouri Human Rights Act.

For the full article, read "A Retirement Community Turned Away These Married Women."   

 

August 20, 2018 in Consumer Information, Current Affairs, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Friday, August 17, 2018

Weighing Costs & Need for LTC Insurance

I'm teaching a "short course" on long-term care insurance for my law students this semester.  Therefore I'm collecting as much current information on policies and costs as possible to share with my students.  Along that line, WTOP-News in the D.C. area recently posted a two part discussion on "Weighing the Costs and Need for Long Term Care Insurance."

From the first part of the series:  

Based on a 2016 Department of Health and Human Services study, about half of Americans turning 65 today will require long-term care services during their lifetimes (47 percent for men and 58 percent for women) with most needing assistance for an average of two years. About 12 percent will need between two and five years of long-term care, and nearly one in seven adults will require five or more years. . . . 

 

Now let’s turn to the potential costs of long-term care services which varies by state and type of care. Genworth, a provider of long-term care insurance, released its 2017 Cost of Care Survey stating the national average annual cost of a private room in a nursing home is $97,452 which is an increase of 5.5 percent from one year ago and a five-year annual inflation increase of 3.5 percent. Interestingly, the biggest increase in long-term care costs was for a home health aide, which increased 6 percent from 2016 to 2017, to $49,162 per year for 44 hours per week.

 

Summary of Genworth’s median annual 2017 long-term care costs are below:

 

Adult Day Care (5 days/week)              $18,200
Assisted Living (one-bedroom)        $45,000
Homemaker Services (44 hours/week)  $47,934
In-Home Health Aide (44 hours/week)  $49,192
Nursing Home (semi-private room)$85,775
Nursing Home (private room)          $97,455

 

Source: Genworth 2017 Cost of Care Study

The article also has a good summary of key features of LTCI, including inflation riders, elimination periods, maximum daily benefits vs. maximum benefit period, lifetime maximums, guarantees on renewability, nonforfeiture options and shared care.

The writer, Nina Mitchell, who is a advisor for The Colony Group, says that she plans to focus on "alternative long-term care solutions, such as hybrid policies that combine life insurance with long-term care insurance" in Part 2.  

August 17, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Thursday, August 16, 2018

Michigan Appellate Decision Demonstrates Impact of Statutory Presumptions in Guardian Cases

On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of  protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator.   The case strikes me as a good vehicle for classroom discussion.

The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed.   The opinion for In re Guardianship of Gerstier notes:

While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis.   When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to  be appointed to fill those roles.  At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator.  The court never articulated any findings regarding [the daughter's] competence and suitability to serve.  Absent those findings, the court erred by appointing [a new professional guardian].  

The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior.   In addition, the father had signed conflicting POAs.  In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father  began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.

Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult." 

The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve.   Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...." 

Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.)  State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control.  Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will  more careful adherence to the laws change the result in this case on remand?  For the classroom exercise, ask students what they predict will be the trial court's next ruling.  

  

August 16, 2018 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, August 14, 2018

Genetic Information Nondiscrimination -- Should Consumer Protections Apply to Long-Term Care and Disability Insurance?


Lily-james-mamma-mia-2-1048601While following the most recent Tour de France cycling competition, I was intrigued by the spectrum of "products"advertised on broadcasts of the race stages --  or, alternatively, on the increasingly popular medium of podcasts by commentators such as Lance Armstrong on The Move.   On one end was the amusing use of bicycling footage from the new movie Mama Mia 2, spliced to make it appear actual TdF racers were just ahead of the maniacal cast. On the other end were advertisements for genetic testing via companies once better known for tracking family trees.   If your TdF hero (or anti-hero?) Lance Armstrong was advocating the benefits of better genetic knowledge via Helix, would those consumers consider the potential ripple effects of such knowledge?

Kaiser Health News recently pointed to key issues:   

The federal Genetic Information Nondiscrimination Act [of 2008] prohibits health insurers from asking for or using your genetic information to make decisions about whether to sell you health insurance or how much to charge. But those rules don’t apply to long-term-care, life or disability insurance.

 

When you apply for long-term-care insurance, the insurer may review your medical records and ask you questions about your health history and that of your family. It’s all part of the underwriting process to determine whether to offer you a policy and how much to charge.

 

If the insurer asks you whether you’ve undergone genetic testing, you generally have to disclose it, even if the testing was performed through a direct-to-consumer site like 23andMe, said Catherine Theroux, a spokeswoman for LIMRA, an insurance industry trade group.

In the current  political climate, it seems unlikely that Congress would tackle a wider application of mandatory nondiscrimination policies connected to risk factors for additional insurance policies.  Thus, if you are asked the questions, you have to tell the truth or be subject to disqualification from benefits if the company later learns, for example, you were aware you had genes associated with increased risk of dementia, but failed to disclose that fact in the application process, a factor relevant to underwriting.  Timing can matter, as also suggested in the Kaiser Health News Report:  

Some states provide extra consumer protections related to genetic testing and long-term-care insurance, said Sonia Mateu Suter, a law professor at George Washington University who specializes in genetics and the law. But most follow federal law.  If you get genetic testing after you have a policy, the results can’t affect your coverage.

For more, read How Genetic Tests Muddy Your Odds of Getting a Long-Term-Care Policy.

August 14, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)