Thursday, October 22, 2015
I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases. Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense." There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.
Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws. There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident. The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.
In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents. The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place. Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.
The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency. If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent. Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio, powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and ombudsman. Other restrictions beyond the statutory ones can be imposed. The statute addresses other matters, such as notice, reporting and more. Read the Illinois statute here.
In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell. It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days. You may have stopped reading precisely because it is such a sad story. But, at the same time, George's story is a surprising tale of the potential consequences of dying alone. The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will. Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.
My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story. As he points out, this story gives another side to our course on Wills Trusts & Estates.
Wednesday, October 21, 2015
The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust." The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:
Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms.
The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children. The issue ends with a bonus -- a primer on "will basics."
The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away.
The entire issue seems like a good resource for a wide audience, including law students. Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of publication. Apparently you can purchase paper copies (see for example the rates for the previous issue, for Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase. I guess you have to keep checking!
October 21, 2015 in Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 20, 2015
ABA's Bifocal, an electronic journal from the ABA Commission on Law and Aging has released one of its October issue articles. Written by Charlie Sabatino in his usual bold style, we confront ten "Myths and Facts About Health Care Advance Directives," sometimes better (if confusingly) known as "living wills." To tease the article, Myth #3 is "Advance Directives are legally binding, so doctors have to follow them." You will want to read the rest of the story....
Monday, October 19, 2015
Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948.
For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC). Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs. The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.
I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.
Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds. What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization? Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?
Thursday, October 15, 2015
When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?
Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent. My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.
But something in the back of my mind was itching, and of course, over the weekend I started scratching. I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law."
The case is from California, where divorcing spouses were arguing over division of community property. One focus of the disputes was proceeds of the sale of a former house. While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt." Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.
Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."
The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.
On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself." For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).
Tuesday, October 13, 2015
In the last few months, I've been getting calls about folks involved in disputes with what I would call two levels of concern. First, there is the concern about how to represent a client with a disability, especially a disability such as dementia, that can make it problematic to ascertain whether the client fully understands his or her own safety or personal care needs. But, the second level is perhaps even more important, the question of whether the lawyer or lawyers involved in the dispute have fully analyzed the questions of "who is my client?" and "do I have a conflict of interest?"
A case that demonstrates well the potential tensions between client capacity, client best interests, and the needs for attorneys to be self-aware, is Dayton Bar Association v. Parisi, 565 N.E. 2d 268 (Ohio 2012). The disciplinary proceeding arose out of two separate client matters, both involving "older" clients. In the first matter, what I call the classic elder law issue of "who is my client" is at the heart of the problem. The decision emphasizes that just wanting to keep the "client safe" is not a defense to a conflict.
In this matter, the attorney in question "began to provide legal services for ... a 93-year-old woman who claimed that she was being held against her will in a nursing home."
The lawyer became concerned about the client's "financial welfare, ... confusion and disorientation," and therefore "applied for a guardianship on the ground the individual was incapacitated as a result of Alzheimer's-related memory loss."
As the Disciplinary proceedings analyzed, the decision of the lawyer to file a guardianship petition may have been consistent with Ohio Rule of Professional Conduct (similar to ABA Rule) 1.14(b) which the Court viewed as permitting "a lawyer to file a petition for guardianship of a client when no less-restrictive alternatives are available."
However, the attorney then had the client "sign a durable power of attorney" and the POA appointed the lawyer as her agent. Next the attorney withdrew her own application for the guardianship, and filed a separate application for guardianship on behalf of the niece.
Compounding this series of conflicts of interest, the disciplinary proceeding addresses the fact that the attorney eventually used the POA as authority to pay "her own fees of more than $18,000 without first obtaining the court's order."
The Ohio Supreme Court affirmed the Disciplinary Board's finding that representing both the woman and her niece in a guardianship violated Rule of Professional Conduct 1.7(a)(2) on conflict of interest. Further, the Ohio Supreme Court agreed with the Board that the attorney's use of the POA to pay her own legal fees while the guardianship application was pending was improper.
The full opinion is well worth reviewing, especially as the second matter leading to the lawyer's suspension from the practice of law involved the attorney billing for legal services plus "non-legal" services she performed as an agent under a POA for an older man whose "extended family was either unwilling or unable to assist in his care."
The Disciplinary Board found, and the Ohio Supreme Court affirmed, that doing a "good job" and helping the man avoid a nursing home did not suffice to justify the $200K plus fees in question. The Court singled out a prime example of the attorney's overbilling, charging "approximately $13,000 in fees and expenses for overseeing the partial restoration of [the man's] beloved Jaguar."
October 13, 2015 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, October 9, 2015
In a convergence of my teaching, research and public outreach work, this week I've found myself in several overlapping conversations about whether adult children have obligations -- moral or legal -- to care for or financially support their parents.
This week, following my Elder Law Prof Blog post recommending Hendrik Hartog's fascinating book, Someday All This Will Be Yours, which I also recommended to my Trust & Estate students, I had a nice series of virtual conversations with Dirk about his book. What a thoughtful historian he is. We were talking about his research-based observation in the book about adult children and needy parents:
Adult children were not legally bound to remain and to work for their parents. Nor were they obligated to care for the old. Adult children were, paradigmatically and legally, free individuals, "emancipated," to use the technical term. . . . Furthermore, there was little -- perhaps nothing-- to keep an uncaring or careless adult child from allowing a parent to go over the hill to the poorhouse.
I asked, "what about filial support laws?" Turns out that was a timely question because Professor Hartog had just been interviewed for a Freakonomics Radio episode, "Should Kids Pay Back Their Parent for Raising Them?" The program became publically available, via podcast or written transcript, on October 8, 2015. In the interview Professor Hartog was asked to comment on filial support laws. He said in part:
Filial responsibility statutes are very weak efforts to ensure that the young will support the old if they are needy.... They rarely are enforced. Very, very, very, very rarely. So, you know, in a sense, every time they are enforced they become a New York Times article or they become an article in the local newspapers.
Professor Hartog was speaking in large measure from the perspective of his important historical research, including review of a body of case reports from New Jersey spanning some 100 years from the mid 1880s to the mid 1900s. And based on my own historical research, I would also say that in the U.S., filial support laws have been rarely enforced, although I would characterize the enforcement as often "episodic" in nature, especially after the growth of Social Security and Medicaid benefits. But...
I think the modern story is quite different in at least one state -- Pennsylvania. Part of this difference is tied to the fact that Pennsylvania's filial support law permits enforcement by commercial third-parties, including nursing homes, as I discussed in my 2013 article on Filial Support Laws in the Modern Era. Other U.S. jurisdictions with "modern" enforcement cases are South Dakota and Puerto Rico.
Indeed, I'm speaking on October 9, 2015 at the invitation of a Bench and Bar Conference in Gettysburg, PA about "The Festering Hot Topic" of Filial Support Laws in Pennsylvania. In the presentation, I report on controversies arising from recent, aggressive collection efforts by law firms representing nursing homes, as well the latest examples of successful enforcement suits by nursing homes and family members. I also analyze a disturbing additional claim, where Germany is seeking to enforce its filial support law to compel a U.S. resident to pay toward the costs of care for an ailing father in Germany.
Ultimately, I think that Professor Hartog and I agree more than we disagree about the lack of behavioral impact flowing from filial support laws. As demonstrated by Professor Hartog in his book, much care and support is provided by children, but flowing from complicated moral or personal inclinations, rather than statute-based lawsuits.
This seems a more realistic paradigm, although not without opportunities for misunderstanding and disappointment. But, as I often observe, the very last person I would want involved in my care would be someone who is doing it "only" because a statute -- much less a court -- is telling them they must care for me.
October 9, 2015 in Books, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, International, Medicaid, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, October 6, 2015
California Governor Jerry Brown signed the California legislature's "right to die" act on Monday, October 5. From coverage in the San Diego Union-Tribune:
Gov. Jerry Brown, a lifelong Catholic and former Jesuit seminarian, said he consulted a Catholic bishop, two of his own doctors and friends "who take varied, contradictory and nuanced positions."
"In the end, I was left to reflect on what I would want in the face of my own death," wrote the Democratic governor, who has been treated for prostate cancer and melanoma. "I do not know what I would do if I were dying in prolonged and excruciating pain. I am certain, however, that it would be a comfort to be able to consider the options afforded by this bill."
Brown's signature on the right-to-die legislation Monday capped an intensely personal debate that dominated much of this year's legislative session and divided lawmakers. Many lawmakers also drew on personal experience to explain their decisions to support or reject legislation making California the fifth state to allow terminally ill patients to use doctor-prescribed drugs to end their lives.
California joins Oregon, Washington, Vermont and Montana in permitting certain assistance in decisions to end one's life.
We have mentioned Hendrik Hartog's book, Someday All This Will Be Yours: A History of Inheritance and Old Age, (Harvard Press 2012) on this Blog as we did on this post outlining a recent symposium law review with articles inspired by the book. I've been remiss, however, in not recommending the book directly.
So let me correct that oversight now. If you haven't read Princeton Professor Hartog's book, or if (as was true for me for too long) you have allowed the book to sit on your "to read" stack, it's time to get to it. The book is a treasure of analysis, commentary, legal history, critique and provocation arising from the simple proposition that in many relationships, someone often utters (or thinks they have heard) words to the effect, "when I'm gone, someday, all this will be yours." The underlying legal question is what happens when no document (such as a will, a trust, or a contract) puts that pledge into writing.
I find much to talk about when reading Hartog's words. One curious item he describes is a poem, "Over the Hill to the Poor House," published by Will Carleton in 1872. Hartog explains that the poem is the source for the now common saying "over the hill" to refer to persons of a certain age. But Hartog points out that the poem's poignancy comes from its all-too-true narrative by one woman about what it can be like to grow old, frail and widowed, even if you have a large family of loving children.
From the closing lines of the poem:
An’ then I went to Thomas, the oldest son I’ve got,
For Thomas’s buildings’d cover the half of an acre lot;
But all the child’rn was on me—I couldn’t stand their sauce—
And Thomas said I needn’t think I was comin’ there to boss.
An’ then I wrote to Rebecca, my girl who lives out West,
And to Isaac, not far from her—some twenty miles at best;
And one of’em said’twas too warm there for any one so old,
And t’other had an opinion the climate was too cold.
So they have shirked and slighted me,an' shifted me about-
So they have well-nigh soured me,an' wore my old heart out;
But still I've borne up pretty well, an' wasn't much put down,
Till Charley went to the poor-master, an' put me on the town.
Over the hill to the poor-house--my chil'rn dear, good-by!
Many a night I've watched you when only God was nigh;
And God 'll judge between us; but I will al'ays pray
That you shall never suffer the half I do to-day.
And for a colorful "sung" version of the poem, with a change in gender for point-of-view, go to Lester Flatt and Earl Scrugg's version of Over the Hills to the Poorhouse.
Over 140 years later, we still hear the phrase "over the hill" in less-than-kind contexts, but one hopes the prospects for care and assistance are not quite as grim as described in these verses.
Monday, October 5, 2015
Illinois adopted a new law, Public Act 098-1093, effective on January 1, 2015 that assigns a "presumptively void" status to bequests made to non-family caregivers, if the transfer would take effect upon the death of the cared-for person. The law applies only to post-effective date bequests that are greater than $20,000 in fair market value. The statutory presumption can be "overcome if the transferee proves to the court" either:
1. by a preponderance of the evidence that the transferee's share under the transfer instrument is not greater than the share the transferee was entitled to receive under ... a transfer instrument in effect prior to the transferee becoming a caregiver, or
2. by clear and convincing evidence the transfer was not the product of fraud, duress or undue influence.
The law only applies in civil actions where the transfer is challenged by other beneficiaries or heirs.
(Fun) Spoiler Alert: The new law plays a clever "starring role" in the Fall 2015 season premiere of The Good Wife. Let's see how many of our law students were watching!
October 5, 2015 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Film, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Thursday, October 1, 2015
The Michigan Supreme Court recently invited amicus briefing by Elder Law attorneys and Disability Rights attorneys, in advance of oral argument in an interesting case involving a nursing home resident's claims of false imprisonment by the facility. The legal question of what is sometimes referred to as an "involuntary" admission for care initiated by family members or concerned others acting as "agents" for an unhappy or uncooperative principal, is important and challenging, especially if accompanied by conflicting assessments of mental capacity.
Following the Michigan Court of Appeals' 2014 ruling in Estate of Roush v. Laurels of Carson City LLC, in September 2015 the Michigan Supreme Court agreed to hear arguments on whether there are genuine issues of material fact on the resident's claim of falsely imprisonment for a period of approximately two weeks. Ms. Roush alleges the nursing home acted improperly in reliance on her "patient advocate," claiming that she was fully able to make health care decisions for herself, and therefore there were no legally valid grounds for her advocate to trump her wishes. Alternatively, Ms. Roush argued she validly terminated the patient advocate's authority.
In Michigan, individuals may appoint a statutorily-designated "patient advocate," with limited authority as an agent for certain health care decisions. Michigan law provides at M.C.L.A. Section 700.5506 that: "The [written] patient advocate designation must include a statement that the authority conferred under this section is exercisable only when the patient is unable to participate in medical or mental health treatment decisions...."
The Supreme Court's order identified specific issues for additional briefing by the parties. Further, the court expressly invited the "Elder Law and Disability Rights Section of the State Bar of Michigan. . . to file a brief amicus curiae. Other persons or groups interested in determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae."
October 1, 2015 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 30, 2015
Jeff Guo, writing for the Washington Post, recently offered a provocative look at "tontines" as a theoretical retirement planning alternative to "annuities." Apparently these are advocated by some modern legal and financial experts:
Economists have long said that the rational thing to do is to buy an annuity. At retirement age, you could pay an insurance company $100,000 in return for some $5,000-6,000 a year in guaranteed payments until you die. But most people don’t do that. For decades, economists have been trying to figure out why....
But there’s also some evidence that people just irrationally dislike annuities. As behavioral economist Richard Thaler wrote in the New York Times: “Rather than viewing an annuity as providing insurance in the event that one lives past 85 or 90, most people seem to consider buying an annuity as a gamble, in which one has to live a certain number of years just to break even.”
Here is where tontines come in. If people irrationally fear annuities because them seem like a gamble on one's own life, history suggests that they irrationally loved tontines because they see tontines as a gamble on other people's lives.
A simple modern tontine might look like this: At retirement, you and a bunch of other people each chip in $20,000 to buy a ton of mutual funds or stocks or whatever. Every year, the group withdraws a predetermined amount and divides it among the remaining survivors. You might get a bonus one year, for instance, because Frank and Denise died....
Want to know more? Read It's Sleazy, It's Totally Illegal, and Yet It Could Become The Future of Retirement. Hat tip to David Pearson for sharing this story.
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?