Thursday, September 24, 2015
If you have worked in Elder Law long enough, you have probably received a panicked call from a family caregiver who is unprepared for a loved one to be discharged on short notice from hospital care.
On September 22, the Pennsylvania Capitol in Harrisburg was crowded with individuals wearing coordinated colors, showing their support for Pennsylvania Caregivers, including family members who are often struggling with financial and practical challenges in caring for frail elders. Here's a link to a CBS-21-TV news report, with eloquent remarks from Tamesha Keel (also pictured left), who has first-hand experience as a stay-at-home caregiver for her own aging mother. Tamesha recently joined our law school as Director of Career Services.
AARP helped to rally support for House Bill 1329, the Pennsylvania CARE Act. The acronym, coined as part of a national campaign by AARP to assist family caregivers, stands for Caregiver Advise, Record and Enable Act. HB 1329 passed the Pennsylvania House in July 2015 and is now pending in the Pennsylvania Senate.
We have written on this Blog before about pending CARE legislation in other states. A central AARP-supported goal is to achieve better coordination of aftercare, starting with identification of patient-chosen caregivers who should receive notice in advance of any discharge of the patient from the hospital. Pennsylvania's version of the CARE Act would require hospitals to give both notice and training, either in person or by video, to such caregivers about how to provide appropriate post-discharge care in the home.
I'd actually like to see a bit more in Pennsylvania. It is unfortunate that the Pennsylvania CARE Act, at least in its current iteration (Printer's Number 1883), does not go further by requiring written notice, delivered at least a minimum number of hours in advance of the actual discharge. AARP's own model act suggests a minimum of 4 hours, consistent with Medicare rules.
Under Federal Law, Medicare-participating hospitals must deliver advance written notice of a discharge plan, and such notice must explain the patient's rights to appeal an inadequate plan or premature discharge. A timely appeal puts a temporary hold on the discharge. See the Center for Medicare Advocacy's (CMA) summary of key provisions of Medicare law on hospital discharges, applicable even if a patient at the Medicare-certified hospital isn't a Medicare-patient. CMA's outline also suggests some weaknesses of the Medicare notice requirement.
AARP's original CARE Act proposals are important and evidence-based, seeking to improve the patient's prospects for post-hospitalization care through better advance planning. At the same time, there's some irony for me in reading the Pennsylvania legislature's required "fiscal impact" report on HR 1329, as it reports a "0" dollar impact. That may be true from the Pennsylvania government's cost perspective, but for the hospitals, to do it right, whether in person or by video, training is unlikely to be revenue neutral. I think we need to talk openly about the costs of providing effective education or training to home caregivers.
If passed by the Senate, Pennsylvania's CARE Act would be not become effective for another 12 months. The bill further provides for evaluation of the effectiveness of the rules on patient outcomes.
As is so often true, states are constantly juggling the need for reforms to solve identified problems, with the costs of such reforms. Perhaps the current version of the Pennsylvania bill reflects some compromises among stakeholders. According to this press statement, the Hospital and Health System Association of Pennsylvania supports the current version of AARP's Pennsylvania CARE Act.
September 24, 2015 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 22, 2015
I was having a conversation recently with our elder consumer protection fellow at the College of Law about remedies for financial exploitation, so this headlline from US News & World Report Health certainly got my attention. Vanishing Retirement: the Hidden Epidemic of Financial Exploitation focuses on the ramifications of being a victim of financial exploitation.
Many Americans look forward to the day they'll be able to put their weekly routines aside and enjoy retirement. It takes decades to realize this goal – after putting kids through school, paying mortgages, making car payments and covering myriad other expenses, all while saving for a time when Mondays no longer mean a return to work. So much time and effort goes into building the nest egg – the target of so many schemes in recent years as more and more older Americans face financial exploitation.
Once someone’s income starts being depleted, many things have to be given up. Discretionary items fall to the wayside first: vacations, hobbies and leisure activities. One may lose the ability to leave an inheritance. Even basic travel becomes difficult when a person can’t afford auto insurance and fuel. Then, paying for basic utilities becomes a challenge, leading to late fees and threats power will be shut off.
Personal health becomes compromised as medication costs overtake retirement income. Even a person’s ability to stay in his or her own home becomes threatened, due to the loss of sufficient funds to pay for rent, taxes or water.
The article mentions Mr. Mickey Rooney's testimony before the Senate Special Committee on Aging. I still remember his testimony, especially him noting if it could happen to him, it could happen to others. The story turns to the lack of recognition that exploitation (or other types of elder abuse) is taking place. The article notes that there are many professionals who could be in a position to spot financial exploitation (such as a bank teller or pharmacist).
It should be a community responsibility to get to know our seniors, engage them regularly and recognize and address concerning changes. That’s why, in many states, mandated reporters for elder abuse include any individual, from the physician to the janitor working in a nursing home, who has contact with an older person. This acknowledges we all have the opportunity to identify abuse.
It is so easy to pass off these clues and say, “It’s not my responsibility,” or “Someone else will take care of it.” But addressing the suspicion of wrongdoing can save a person from Mickey Rooney’s fate.
Wednesday, September 16, 2015
Catching up on a bit of reading, I notice that the Uniform Laws Commission has a committee hard at work on drafting proposed revisions to the 1997 Uniform Guardianship and Protective Proceedings Act (UGPPA). University of Missouri Law Professor David English is Chair of that committee, with many good people (and friends) on the working group.
In reviewing their April 2015 Committee Meeting Summary, available here, I was interested to see the following note under the discussion heading about "person-first language:"
Participants engaged in a lively discussion of the desirability of person-first language, and possible person-first terminology. There was general agreement that the revision should attempt to incorporate person-first language. For the next meeting, the Reporter [University of Syracuse Law Professor Nina Kohn] will attempt a draft that uses language other than "ward" or "incapacitated" to the extent possible and utilizes person-first language instead (precise wording still to be determined). The Reporter will also attempt to use a single term that can describe both persons subject to guardianship and those subject to conservatorship.
I've struggled with "labels" in writing and speaking about older adults generally, and incapacitated persons specifically. It will be interesting to see what the ULC committee recommends on this and even more daunting tasks, including how to better facilitate and promote "person-centered decision-making" and limited guardianships.
September 16, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 15, 2015
The New Mexico Court of Appeals issued its opinion in August in the case of Morris, et al v.Brandenburg. The trial court had previously ruled that the statute in question, N.M. § 30-2-4 was unconstitutional. The appellate court determined that "[t]he question presented is whether this statute may constitutionally be applied to criminalize a willing physician's act of providing a lethal dose of a prescribed medication at the request of a mentally competent, terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity." id. at ¶ (1). The trial court had found a fundamental liberty interest to have physician aid-in-dying under the state constitution, but the appellate court disagreed. id.
Aid in dying, the medical concept of dying with autonomy and dignity, is a relatively recent human phenomena and deserves appropriate public evaluation and consideration. However, as a new legal consideration, it must also be carefully weighed against longstanding societal principles such as preventing a person from taking the life of another; preventing suicide; preventing assisted suicide; promoting the integrity, healing, and life preserving principles of the medical profession; protecting vulnerable groups from unwanted pressure to considering aid in dying as the best alternative to other medical options; and promoting human life where aid in dying is not the appropriate medical option despite a patient's request for its use... The recent advances in life-prolonging medical care and the public acceptance of aid in dying in some states has not diminished the other longstanding societal principles and concerns regarding intentional killing, the dying process, the preservation of life, and the basic life saving principles embedded in the medical profession.
Id. at ¶ 37 (citations omitted). The appellate court goes on to note that the dying process itself and the resulting death are not included in the state's constitutional enumerated rights and " can only qualify as inferences that might exist within the categories of liberty or happiness." id. at ¶ 41. The court also had concerns regarding the narrow application of the right as it would only apply to certain citizens who are terminally ill, death within a certain time, etc. id. at ¶¶ 45-47 After reviewing the remaining arguments of the plaintiffs, the majority ruled.
We reverse the district court's ruling that aid in dying is a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court's order permanently enjoining the State from enforcing Section 30-2-4. We affirm the district court's determination that, for statutory construction purposes, Section 30-2-4 prohibits aid in dying. Separate from the Concurring Opinion, I would also remand this case to the district court to make any further findings it deems necessary, to conduct both an intermediate scrutiny and rational basis review of Section 30-2-4, as well as dispose of Plaintiffs' remaining claims.
Id. at ¶ 54. The opinion includes concurring and dissenting opinions.
As we have tracked recently on this Blog, in a number of states, including Florida and Nevada, serious questions have been raised about the roles of guardians for disabled and elderly persons, and the extent to which there should be public oversight of guardians, especially "paid" guardians, including public guardians, "professional" guardians or "private" guardians.
In Florida, newly proposed legislation, Senate Bill 232 (filed in September 2015) would seek to clarify state oversight of all guardians, following on the heels of amendments to Florida state law enacted in mid-2015. Florida's legislature may take up the latest bill early in 2016, according to media reports. Key provisions in the bill include:
- renaming of the current office of "public guardianships," with expanded duties and responsibilities, to create the "Office of and Professional Guardians;"
- addition of findings about the potential need for a "public guardian" where there is "no willing and responsible family member or friend, other person, bank, or corporation available to serve;"
- a requirement that "professional" guardians "shall" register with the state;
- directions to establish a comprehensive system for receipt and state action on complaints made about professional guardians.
From reading SB 232, it seems to me there may be some attempt to appease the concerns about the potential for overregulation of so-called "professional" guardians, as new language in Section 744.2001 requires development and implementation of a new "monitoring tool to ensure compliance of professional guardians with standards" set by the Office, but this "monitoring tool may not include a financial audit " as specified in another section of the law (emphasis added).
Funding will be needed to make expanded oversight effective.
September 15, 2015 in Consumer Information, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, September 13, 2015
The NY Times ran a story that on September 11, 2015, the California legislature passed a bill that provides for physician-aided dying for folks with terminal illnesses. California Legislature Approves Assisted Suicide notes that if Governor Brown signs the bill, California will become the 4th state with a statute allowing PAD (physician-aided dying). The other three are Washington, Oregon, and Vermont. (It is allowed in Montana pursuant to a state supreme court decision. A New Mexico appellate court recently overturned a trial court opinion that allowed it).
The story notes that the California legislation is based on Oregon's, but with some clear differences:
The California law would expire after 10 years and have to be reapproved, and doctors would have to consult in private with the patient desiring to die, as part of an effort to ensure that no one would be coerced to end his or her life — a primary concern for opponents of the law.
You may recall that this is not the first attempt to approve PAD in California. "Previous bills to legalize assisted suicide have failed in California, including one this year, when pressure from the Roman Catholic Church helped stall a similar measure in the Assembly. (The bill was resurrected for a special session, where it could bypass Assembly committees.)"
Friday, September 11, 2015
In a recent decision in a complicated and long-running guardianship case, an appellate court in Illinois highlights a topic I'm seeing more and more often: How should courts "value" scores given by evaluators on mental status exams, especially when addressing guardianship issues?
The most recent opinion in Estate of Koenen, issued August 31, 2015, described testimony from multiple witnesses about the mental status of a man in a "plenary guardianship" proceeding. In two reports, from physicians chosen by the individual, the medical experts opined he was "capable of making his own personal and financial decisions." Another witness, a psychiatrist, was appointed by the court to evaluate the individual's "ability to make personal and financial decisions." Ultimately, the lower court concluded the individual was unable to manage his affairs.
On appeal, a central issue was the lower court's reliance on the court-appointed expert. Part of the psychiatrist's testimony was that the man "scored 26 out of 30, at the low end of the normal range" on the Montreal Cognitive Assessment (MOCA)" administered in January 2012, a test that was described by the court as a "twelve-minute test with standardized questions, as well as writing and 'copying' tests." The psychiatrist also testified that in January 2013 he tested the man again with a score on the MOCA that was "now 22 out of 30 which was 'fully consistent with dementia.'"
Ultimately, the appellate court affirmed the lower court's decision, noting the extensive use of interviews and other data collection by the court-appointed physician to support the findings of incapacity. The appellate court seemed interested however, in the actual number scores, taking note that the court-appointed expert discounted scores reported by the individual's preferred physicians on "Folstein or 'mini-mental' examination[s]" on the grounds that the MOCA test was more sensitive "for dementia."
Reading this challenging case is a reminder of the ABA-APA Handbooks, for attorneys, psychologists, and judges, on assessing capacity of older adults. The Handbook for Judges describes a host of cognitive and neuropsychological testing tools, although it appears neither the MOCA test or the Folstein test is described. Is "standardization" of testing for purposes of legal capacity decisions needed?
Thursday, September 10, 2015
A New York ethics opinion issued July 27, 2015 is a useful reminder of the possibility -- indeed probability -- that law firms well known for specializing in elder law or estate planning may be approached by successive generations of family members, thus creating potential issues of confidentiality (and more).
In the matter under consideration, involving a small law firm that practiced "primarily in the fields of estate planning and administration, trusts and elder law," two of the lawyers had a long relationship with a "father," including representation of the father in a contested adult guardianship case.
Later, a different lawyer in the firm met with a "son" of the father to discuss personal estate planning following a "public seminar" hosted by the firm. That lawyer did not conduct a "conflict check" before a first meeting, one on-one, with the son. (One can see how a law firm might be tempted to skip or delay a step in conflict-checking when organizing these kinds of business-generating efforts, a potential not directly addressed in the New York opinion. Would disclaimers or warnings about "client relationships" not forming immediately remedy potential problems -- or perhaps make them even more complicated?)
The law firm, upon discovering the potential for concerns, made the decision not to go forward with representation of the son, and then asked the New York State Bar Association's Committee on Professional Ethics for guidance on whether rules either "required" or "permitted" the law firm to disclose to the father the son's request for representation, or whether the firm was prohibited from further representation of the father.
For the New York ethics committee's interesting analysis, see New York Ethics Opinion 1067. For a contrasting "multi-generational" representation problem involving a husband's undisclosed "heir," see A. v. B., decided by the New Jersey Supreme Court in 1999, a case that is a good springboard for discussion of professional responsibilities for attorneys in the course on Wills, Trust & Estates (as I discovered in the Dukeminer/Sitkoff textbook).
Wednesday, September 9, 2015
We recently learned of the important role played by Matthew Andres, Director of the Elder Financial Justice Clinic at the University of Illinois School of Law, in convincing the Illinois legislature of the need for a clear civil remedy for seniors and disabled persons who are victims of financial exploitation.
Earlier this year, the Illinois legislature approved Public Act 99-0272, amending existing law that defined the crime of financial exploitation, to provide a specific civil remedy, one that would no longer be tied to (or require) a criminal prosecution. Effective on January 2, 2016, the new Illinois law provides:
Civil Liability. A civil cause of action exists for financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section. A person against whom a civil judgment has been entered for financial exploitation of an elderly person or person with a disability shall be liable to the victim or to the estate of the victim in damages of treble the amount of the value of the property obtained, plus reasonable attorney fees and court costs.
In a civil action under this subsection, the burden of proof that the defendant committed financial exploitation of an elderly person or a person with a disability as described in subsection (a) of this Section shall be by a preponderance of the evidence. This subsection shall be operative whether or not the defendant has been charged or convicted of the criminal offense as described in subsection (a) of this Section. This subsection (g) shall not limit or affect the right of any person to bring any cause of action or seek any remedy available under the common law, or other applicable law, arising out of the financial exploitation of an elderly person or a person with a disability.
Professor Andres was the author of a white paper on the need for the changes to prior law, and the resulting bill was supported by AARP. For more, see the news from the University of Illinois website here. Great work, Matt!
Thursday, September 3, 2015
Third Circuit Rules Medicaid Applicants' Short-Term Annuities Are Not "Resources" Preventing Eligibility
In a long awaited decision on two consolidated cases analyzing coverage for nursing home care, the Third Circuit ruled that "short-term annuities" purchased by the applicants cannot be treated by the state as "available resources" that would delay or prevent Medicaid eligibility. The 2 to 1 decision by the court in Zahner v. Secretary Pennsylvania Department of Human Services was published September 2, 2015, reversing the decision (linked here) of the Western District of Pennsylvania in January 2014.
The opinion arises out of (1) an almost $85k annuity payable in equal monthly installments of $6,100 for 14 months, that would be used to pay Donna Claypoole's nursing home care "during the period of Medicaid ineligibility that resulted from her large gifts to family members"; and (2) a $53k annuity purchased by Connie Sanner, that would pay $4,499 per month for 12 months, again to cover an ineligibility period created by a large gift to her children.
The Pennsylvania Department of Human Services (DHS) argued that the transactions were "shams" intended "only to shield resources from the calculation of Medicaid eligibility." However, the majority of the Third Circuit analyzed the transactions under federal law's "four-part test for determining whether an annuity is included within the safe harbor and thus not counted as a resource," concluding:
Clearly, if Congress intended to limit the safe harbor to annuities lasing two or more years, it would have been the height of simplicity to say so. We will not judicially amend Transmittal 64 by adding that requirement to the requirements Congress established for safe harbor treatment. Therefore, Claypoole's and Sanner's 14-and 12-month contracts with ELCO are for a term of years as is required by Transmittal 64.
Further, on the issue of "actuarial soundness," the court ruled:
[W]e conclude that any attempt to fashion a rule that would create some minimum ratio between duration of annuity and life expectancy would constitute an improper judicial amendment of the applicable statutes and regulations. It would be an additional requirement to those that Congress has already prescribed and result in very practical difficulties that can best be addressed by policy choices made by elected representatives and their appointees.
The her short dissent, Judge Marjorie Rendell explained she would have affirmed the lower court's ruling in favor of DHS on the "grounds that the annuities ... were not purchased for an investment purpose, but, rather, were purchased in order to qualify for benefits." In addition, she accepted DHS' argument the annuities were not actuarially sound.
September 3, 2015 in Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)
Friday, August 28, 2015
Sometimes "small" cases reveal larger problems. A recent appellate case in Pennsylvania is a reminder of how practical solutions, such as establishing a joint bank account to facilitate management of money or to permit sharing of resources during early stages of elder care, may have unforeseen legal implications later. In Toney v. Dept. of Human Services, decided August 25, 2015, the Commonwealth Court of Pennsylvania ruled that "half" of funds held in a joint savings account under the names of the father and his son, were available resources for the 93-year-old father. Thus the father, who moved into a nursing home in May 2014, was not immediately eligible for Medicaid funding.
The son argued, however, that most of the money in the account was the son's money, proceeds of the sale of his own home when he moved out of state almost ten years earlier:
"The son alleged that his father used the bulk of that money to maintain himself, with the understanding that any money remaining from that CD after his father's death would revert to him. The ALJ, however, rejected the son's testimony as self-serving and not credible...."
Thursday, August 27, 2015
Justice in Aging offers a very interesting examination of training standards for the broad array of persons who assist or care for persons with dementia, including volunteers and professionals working in health care facilities or emergency services. The series of 5 papers is titled "Training to Serve People with Dementia: Is Our Health Care System Ready?" The Alzheimer's Association provided support for the study.
The papers include:
- Paper 1: Issue Overview
- Paper 2: A Review of Dementia Training Standards across Health Care Settings
- Paper 3: A Review of Dementia Training Standards across Professional Licensure
- Paper 4: Dementia Training Standards for First Responders, Protective Services, and Ombuds
- Paper 5: Promising Practices-Washington State-A Trailblazer in Dementia Training
To further whet your appetite for digging into the well written and organized papers, key findings indicate that "most dementia training requirements focus on facilities serving people with dementia," rather than recognizing care and services are frequently provided in the home. Further there is "vast" variation from state to state regarding the extent of training required or available, and in any licensing standards. The reports specifically address the need for training for first responders who work outside the traditional definition of "health care," including law enforcement, investigative and emergency personnel.
If you need an example of why dementia-specific training is needed for law enforcement, including supervisors and staff at jails, see the facts contained in Goodman v. Kimbrough, reported earlier on this Blog.
August 27, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, August 26, 2015
Traditional estate practice attorneys are facing ever-increasing competition from commercial sites offering document preparation for set fees, usually through use of on-line templates for wills and similar estate planning documents. LegalZoom, Inc., the brainchild of attorneys, including Brian Lee and Robert Shapiro (of O.J. Simpson trial fame) and begun in 2001, is one of the biggest commercial document companies.
Traditional lawyers point out that they provide not just "documents" but core counseling and advice about the larger issues that may be involved in proper estate planning. Recently, however, I've noticed LegalZoom is also touting availability of "legal help" through its television commercials, with the tagline "Real Attorneys. Real Advice." Here's a link to one recent example.
The small print at the bottom of the page at the end includes full names and locations of the several attorneys who say "hi" during the television commercial, plus the following:
"This is an advertisement of a prepaid legal services plan, not for an individual attorney. This is not an attorney recommendation or legal advice. No comparative qualitative statements intended.... For the attorneys' full addresses, a list of non-appearing attorneys and more information, please visit legalzoom.com."
Earlier this year, LegalZoom filed an antitrust lawsuit against the North Carolina Bar, asserting that the organization was "unreasonable barring" the company from offering a prepaid legal services plan in its state. The suit cites the February 2015 decision by the U.S. Supreme Court in North Carolina State Board of Dental Examiners v. Federal Trade Commission. LegalZoom filed an amicus brief in that case outlining its theory that misuse of state bar regulatory authority to restrict access to legal advice harms consumers.
August 26, 2015 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Federal Cases, Legal Practice/Practice Management, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, August 25, 2015
An interesting approach to the topic of aging faculties in higher education recently came across my virtual desk in the form of an advertisement for an upcoming webinar (with an interesting price tag to match). The title of the program is "Managing and Supporting an Aging Workforce," offered by Academic Impressions (a company I'm not familiar with) on November 15, 2015 from 1 to 2:30 p.m. EST.
The brochure advises "Given the nature of this topic, this online training is appropriate for human resources professionals, department chairs, deans, and senior administrators who deal with faculty and personnel issues."
Here's the description, which strikes me as charting a careful approach to helping (encouraging?) older faculty members make the decision to retire, without running afoul of age discrimination laws.
Experienced academic and administrative employees are the pillars for many institutions in higher education. However, with many faculty and staff members working well into their 60’s and 70’s, administrators face the challenge of supporting an aging workforce while having the appropriate policies and procedures in place.
Learn how to better balance the interests of your employees with the needs of your institution. This webcast will cover:
Laws governing discrimination and how to remain in compliance
Appropriate steps for dealing with diminishing capabilities
Performance reviews, policies, and procedures
Monday, August 24, 2015
In a recent guardianship case reviewed by the North Dakota Supreme Court, the alleged incapacitated person (AIP), a woman suffering "mild to moderate Alzheimer's disease and dementia," did not challenge the need for an appointed representative, but proposed two friends, rather than any relatives, to serve as her co-guardians. The lower court rejected her proposal, finding that a niece, in combination with a bank, was better able to serve as her court-appointed guardian/conservator.
On appeal, the AIP challenged the outcome on the grounds that the court had made no findings that she was without sufficient capacity to choose her own guardians. In The Matter of Guardianship of B.K.J., decided on July 30, 2015, the ND Supreme Court affirmed the appointment of the niece, concluding that although state law requires consideration of the AIP's "preference," no special findings of incapacity were necessary to reject that preference.
Contrary to [the AIP's] argument [State law] does not require the district court to make a specific finding that a person is of insufficient mental capacity to make an intelligent choice regarding appointing a guardian. While it might have been helpful to have a specific finding, we will not reverse so long as the district court did not abuse its discretion in appointing a guardian.... Here, it is clear the district court was not of the opinion [that the AIP] acted with or has sufficient capacity to make an intelligent choice. Rather, the district court's findings noted [she] testified that she did not trust [her niece] anymore, but was unable to recall why . . . .
Decisions such as these can be inherently difficult to manage, at least in the early stages, especially if the AIP is unlikely to cooperate with the decision-making of the "better" appointed guardian.
Tuesday, August 18, 2015
An interesting dispute is moving forward in federal court in California, involving interpretation of coverage under a long-term care insurance (LTCI) policy. The case is Gutowitz v. Transamerica Life Insurance Company, (Case No. 2:14-cv-06656-MMM) in the Central District of California. UPDATE: link to Order dated August 14, 2015.
In 1991, plaintiff Erwin Gutowitz purchased a long-term care insurance policy, allegedly requesting the "highest level of long-term care coverage available," and presumably paying the annual premiums for more than 20 years. Eventually, following a 2013 diagnosis of Alzheimer's, Erwin Gutowitz needed assistance, moving into an apartment at Aegis Living of Ventura, which was licensed in California as a "Residential Care Facility for the Elderly" (an RCFE). With the help of his son as his designated health care agent, he then made a claim for long-term care benefits under his policy. The claim was denied by Transamerica on the ground that the location was not a "nursing home" as defined in the LTCI policy.
Insurers understandably prefer not to pay claims if they can avoid doing so. In this case the insurer attempted to avoid the claim on the grounds that only certain types of facilities (or a higher level of care) were covered under this policy's "Daily Nursing Home Benefit."
On August 14, 2015, United States District Judge Margaret Morrow issued a comprehensive (34 page) order, copy linked above, denying key arguments made by Transamerica in its summary judgment motions.
August 18, 2015 in Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, August 14, 2015
In a recent article for the University of Baltimore Law Review, John C. Craft, a clinical professor at Faulkner University Law, draws upon the history of legislation governing powers of attorney to advocate a return to effectiveness of the POA being conditioned by an event, such as proof of incapacity. Professor Craft, who is the director of his law school's Elder Law Clinic, writes:
Section 109 in the Uniform Power of Attorney Act should be revised making springing effectiveness of an agent's powers the default rule. Springing powers of attorney provide a type of protection that may actually prevent power of attorney abuse. The current protective provisions in the UPOAA focus in large part on the types of abuse that occur after an agent has begun acting for the principal. As opposed to arguably ineffective “harm rules” intended to punish an unscrupulous agent, springing powers of attorney are a type of “power rule” intended to limit an agent's “ability to accumulate power . . . in the first place.” The event triggering an agent's accumulation of power -- the principal's incapacity -- may never occur. A financial institution may prevent an unscrupulous agent from activating his or her power and conducting an abusive transaction simply by asking for proof that the principal is incapacitated. In addition, making springing effectiveness the standard serves the goal of enhancing a principal's autonomy.
For his complete analysis, read Preventing Exploitation and Preserving Autonomy: Making Springing Powers of Attorney the Standard.
August 14, 2015 in Advance Directives/End-of-Life, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, August 13, 2015
Earlier this summer, a North Carolina appellate court reversed a trial court's finding that "membership fees" tied to condominium purchases in a retirement community were "unconscionable." In a class action suit filed by residents against Cedars of Chapel Hill LLC., this summer's ruling permits the defendant company to continue to market and sell its retirement condos as "fee simple" units in combination with "continuing care member" contracts, although the court also remanded for a jury trial before the lower court.
In a highly technical ruling that examined state real estate transfer fee rules, the North Carolina's marketable title act, and arguments under the common law about unequal bargaining power, the appellate court rejected summary judgment in favor of the residents. The court addressed allegations of both procedural and substantive unconscionability in the contracting process. The court explained in part:
Substantive unconscionability “refers to harsh, one-sided, and oppressive contract terms.” … The terms must be “so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.” Brenner v. Little Red Sch. House Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981). Plaintiffs, in raising this issue, contended that the fees in question were “exorbitantly high,” that the documents at issue were “decidedly one-sided in favor of the Company,” and that plaintiffs lacked “ability ... to negotiate any of the terms of the covenants and conditions in question in this case.” Plaintiffs further noted that the market for CCRCs in Chapel Hill is very small, leaving few alternatives.
…[W]e find plaintiffs' arguments unavailing. We recently held that “the times in which consumer contracts were anything other than adhesive are long past.” Torrence v. Nationwide Budget Fin., ––– N.C.App. ––––, ––––, 753 S.E.2d 802, 812 (quoting AT&T Mobility LLC v. Concepcion, –––U.S. ––––, ––––, 131 S.Ct. 1740, 1750, 179 L.Ed.2d 742, 755 (2011)), review denied, cert. denied, 367 N.C. 505, 759 S.E.2d 88 (2014). The mere fact that plaintiffs lacked the ability to negotiate contract terms does not create substantive unconscionability, nor does the fact that defendants were among the only providers of CCRC facilities. We hold that plaintiffs did not adequately demonstrate unconscionability as a matter of law, and that a genuine issue of material fact existed as to unconscionability, which precluded summary judgment.
For more of this ruling, see Wilner v. Cedars of Chapel Hill LLC., 773 S.E 2d. 333 (N.C. Ct. App., 2015).
For reactions from the parties' representatives, see NC Appeals Court Ruling Favors Cedars of Chapel Hill Condo Fees.
For an additional, interesting discussion of business perspectives on retirement developer control, written prior to the most recent appellate court ruling, see Two Pitfalls of Leveraging Developer Influence, from a North Carolina law firm blog.
This case -- revealing the range of complexities in contracts for senior housing and services -- is another example of why I added "Contracts" law to my teaching package, with elder law!
Tuesday, August 11, 2015
Avenging angels or unholy alliance? A lawsuit filed by the New Mexico Attorney General in December 2014 against Preferred Care Partners Management Group, a large, privately held management company operating nursing homes in New Mexico and nationally, raises interesting questions about whether AGs should be teaming with private lawyers to pursue cases of alleged malpractice, abuse or fraud affecting consumers. The Plano, Texas-based defendant asserts that "lobbying" of state attorney generals by private firms to pursue questionable claims is improper, pointing to campaign contributions paid by law firms or individual lawyers, as well as contingent fee arrangements that defendants argue reduce the States' accountability.
Current Attorney General Hector Balderas blasted back at the company through a spokesman. “Bilking taxpayers for inadequate care and denying helpless and vulnerable residents basic services will not be tolerated,” he said. “Our office will continue to aggressively protect New Mexico’s taxpayers and our most vulnerable populations.”
Currently, the New Mexico case is in federal court, following the defendant's removal from the original filing in state court. The law suit -- and the issue of private/public partnerships in pursuing claims on behalf of consumers and/or taxpayers -- is generating a lot of attention in the business world. Recent coverage includes linked news stories by the New York Times, the Albuquerque Journal, and McKnight's LTC News.
August 11, 2015 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Cases, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink
Monday, August 10, 2015
The Public Policy Institute (PPI) of California recently profiled demographic changes likely to affect that state in coming decades, including the impact of a projected increase, to 20%, of the proportion of the population aged 65+. One especially interesting component is the impact of seniors who are likely to be "single," especially those without the assistance of children, spouses, or other close family members, a trend that seems likely to be true nationwide. From PPI's report (minus charts and footnotes):
Family structures in this age group will also change considerably—in particular, marital status will look quite different among seniors in 2030 than it does today.... The fastest projected rates of growth are among the divorced/separated and never married groups. Between 2012 and 2030, the number of married people over age 65 will increase by 75 percent—but the number who are divorced or separated will increase by 115 percent, and the number who are never married will increase by 210 percent....
Another significant change will be in the number of seniors who have children. Those who have never been married are much less likely to have children than those who have been married at some point. As a result, seniors in the future will be more likely to be childless than those today.... In 2012, just 12 percent of 75-year-old women had no children. We project that by 2030, nearly 20 percent will be childless. Since we know that adult children often provide care for their senior parents, these projections suggest that alternative non-family sources of care will become more common in the future.
Thus, just as we're making noise about supporting seniors' preference to "age at home," we may be over-assuming that family members will be available to provide key care without direct cost to the states. Hmmm. That's problematic, right?
More from the California PPI report, including some conclusions:
California's senior population will grow rapidly over the next two decades, increasing by an estimated 87 percent, or four million people. This population will be more diverse and less likely to be married or have children than senior are today. The policy implications of an aging population are wide-ranging. We estimate that about one million seniors will have some difficulties with self-care, and that more than 100,000 will require nursing home care. To ensure nursing home populations do not increase beyond this number, the state will need to pursue policies that provide resources to allow more people to age in their own homes....
The [California In-Home Service & Supports] IHSS program provides resources for seniors to hire workers, including family members, to provide support with personal care, household work, and errands. One benefit of hiring family members is that they may provide more culturally competent care. Medi-Cal is already the primary payer for nursing home residents, and the state could potentially save money by providing more home- and community-based services that support people as they age, helping to keep them out of institutions. Finally, the projected growth in nursing home residents and in seniors with self-care limitations will require a larger health care workforce. California’s community college system will be a critical resource in training qualified workers focused on the senior population.
The San Diego Union-Tribune follows up on this theme in California Will Have More Seniors Living Alone, by Joshua Stewart.
August 10, 2015 in Consumer Information, Dementia/Alzheimer’s, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Medicaid, Retirement, State Statutes/Regulations, Statistics | Permalink | Comments (0)