Tuesday, April 17, 2018

Access to Justice for Older Adults: Is the Glass Half Empty or Half Full?

Testimony before PA House Hearing on Access to Justice 4.11.18TThe Pennsylvania House Committee on Aging and Older Adult Services  invited representatives of legal aid organizations to speak on April 11, 2018.  As I listened to attorneys from SeniorLAW Center, Community Legal Services of Philadelphia, MidPenn Legal Services and the Deputy Chief Counsel and Legal Assistance Developer for Pennsylvania's Department of Aging, it occurred to me that many of the client histories, including my own school's clinic story, were about positive outcomes in representing individuals facing potentially tragic futures, including eviction from the only housing they know, rejection for Medical Assistance, or no option but to rely on the unkindness of strangers. 

We were speaking, understandably, about the good that trained lawyers and lawyers-in-training (students in law school clinical programs) can do.  For example, Pam Walz, director of the Aging and Disabilities Unit at Community Legal Services (CLS) in Philadelphia told the story of a recent client, "Mr. D," who at age 70 was living alone in a single room in a rooming house.  He was found unconscious, leading to hospitalization:

He had suffered a stroke and at the hospital he was also diagnosed with throat cancer.  A treatment plan was created, including radiation therapy, and he had to have a feeding tube placed.  The hospital discharged him to a nursing facility because they did not think he could care for himself alone in a rooming house. . . .

 

Mr. D received rehabilitation for about two weeks at the nursing facility but the facility failed to coordinate with his oncologist or to provide him with transportation for his first radiation treatment.  Worse yet, the nursing facility told Mr. D that they were discharging him because his Medicare coverage had ended, despite the fact that he continued to need nursing facility care and is eligible to have his continued stay paid by Medicaid [under federal and state law]. . . .  The nursing facility had also failed to provide a legally required written notice of discharge, explaining Mr. D's rights to appeal the discharge to the Department of Human Services. . . . [S]ending Mr. D back to his rooming house in his condition would not be a safe discharge.

CLS attorneys stepped in and filed the appropriate papers to get the discharge stopped until the legally mandated "safe" discharge plan could be determined.  They recognized that Mr. D was further in jeopardy because he needed assistance in Spanish, a requirement safeguarded by Title VI of the federal Civil Rights Act.  

CLS attorneys will continue to represent him.  The message in common for the speakers is about the better outcomes possible when trained experts step in.  On the one hand it is a success story and a success story heard across the nation at the hands of both legal aid attorneys and private attorneys who are skilled in the array of state and federal laws intended to protect older adults and provide greater dignity in circumstances of need, including ill health or extreme risk.  

I realized that with our testimony, including my testimony about students at Penn State's Dickinson Law's Community Law Center, who were able to prevent the wrongful eviction of an older man, we were painting a picture of a glass half full. But a half-full glass is also half-empty.  As I testified, the histories also made me a bit sad, because I know how many calls for help go unanswered, because there aren't enough free or low cost services for those in need. 

As one woman explained to me in seeking a lawyer, "I had a plan.  I planned to work until I was 70 and I made it.  I planned my savings to last until I was 80 and I made it.  Unfortunately, now I'm 85 and my savings weren't enough, Social Security isn't enough, and I don't know what to do. . . . I think I need help with my creditors, but I can't pay an attorney to help me."

I testified that law schools with clinical programs and legal aid organizations are willing to do more to represent the underrepresented, but to do so each such organization needs ines of funding dedicated to older adult legal services.  In more rural communities, the need may be especially serious.  It's not that the glass is half full or half empty, it's that the glass is probably just 20% full, as so many go without sound legal advice until desperation sets in, and even then only a small number get help in time. 

In the photo here, after testifying before the House committee, we're smiling because key members were listening and asking important questions. PA House of Representatives Hearing on Access to Justice for Older Adults 4.11.18
The tall man in the center, Chairman Tim Hennessey, has long served in a leadership role for senior services in Pennsylvania.  Around him, from left to right, me, Deborah Hargett-Robinson (Pa Department of Aging), Wendy Bookler (SeniorLAW Center), Karen Buck (Exec. Dir. SeniorLAW Center), Pam Walz (CLS) and Marisa Halm (Dickinson Law 1L student who will intern with SeniorLAW in summer 2018).

I'm often bouyed by the commitment of so many students to public interest law. Students who plan on private practice also, increasingly, recognize commitments to public service with their own pro-bono pledges.  Private attorneys who make a commitment of a percentage of their time to pro-bono services are part of the solution.

Justice Sonia Sotomayor, before she made it to the bench of the highest court in the U.S., reminded lawyers of our duty to "represent the underrepresented in our society" and to "ensure that justice exists for all, both legal and economic justice."  A reminder in these challenging times of our ability and obligation to do good.  

For more, here's a link to my written testimony.

My special thanks to Karen Buck for her leadership role on the future of legal services in Pennsylvania.  Here is the link to SeniorLAW Executive Director Buck's testimony;  Karen opened the hearing.

April 17, 2018 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Medicaid, Medicare, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, April 16, 2018

Hawaii Governor Signs Medical Aid-in-Dying bill

Hawaii's governor signed into law the medical aid-in-dying bill, making medical aid-in-dying legal in Hawaii starting January 1, 2019.  Hawaii is now the 6th state with a statute, in addition to the District of Columbia.  Montana dealt with the issue via a Montana Supreme Court opinion.  The Hawaii law provides safeguards. The law is known as "'Our Care, Our Choice' Act" and according to the article published in the Honolulu paper, took two decades to become a reality.

April 16, 2018 in Advance Directives/End-of-Life, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 15, 2018

Do The Hospital Doctors See Your Advance Directives?

Of late it seems to me that we have seen a lot of articles dealing with issues regarding end of life wishes.   The New York Times ran an article in late March about doctors actually seeing a patient's advance directive.  You’ve Detailed Your Last Wishes, but Doctors May Not See Them is written by a doctor who summarizes first-hand experiences in a hospital with one patient in the ER who "had done everything we could have asked. He’d been brave enough to talk with his doctors about his cancer and acknowledge that time was short. He had designated a health care proxy. But there he was, surrounded by strangers, the intubation he never would have wanted looming and the record of that conversation buried in his electronic record." 

Here's how the doctor described the problem, as "not about individuals, but instead about a system that doesn’t sufficiently protect patients from getting care they do not want."  The issue it seems is documenting the info or the ability to retrieve the info in the chart.

This doctor "delved into the unexpectedly interesting world of advance care planning and electronic health records, interviewing clinicians with on-the-ground experience recording and retrieving these conversations and representatives from the companies behind some of the most widely used electronic records."  The stories shared are quite interesting and highlights the issues that arise without a national standard.

Here are some suggestions the author included in the article:

What could really make a meaningful difference, I heard time and time again, is standards for sharing, or “interoperability” across all electronic records that would benefit every patient, everywhere. At least, all related advance care planning documentation should be in one place in the medical record and accessible with one simple click of the mouse. Beyond that, maybe all health systems could require identification of a health care proxy for all patients, so we would know who should make decisions if the patient can’t. Maybe patients should be able to access their health records through a patient-facing interface, send in their own directives, or even update related notes. Ideally, the electronic record isn’t just a clunky online version of a paper chart but actually a tool to help us do our jobs better.

 

April 15, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (2)

Wednesday, April 11, 2018

Mark Your Calendars: Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation

Mark your calendars for April 18, 2018 at 2 p.m. edt for a free webinar from the National Center on Law & Elder Rights, Drafting Advance Planning Documents to Reduce the Risk of Abuse or Exploitation. Here is the description that I received in the email announcing the webinar:

In 2016, Medicare began reimbursing physicians for counseling beneficiaries about advance-care planning. At around the same time, Health Affairs released a study finding that only one-third of older adults have completed any health care planning documents. For attorneys counseling older adults, completing advance planning documents is just one part of care planning. Drafting these documents in a way that reduces the risk of abuse and exploitation is a critical component of providing good counsel.

This webcast will discuss ways to work with clients to select lower-risk agents, tools to document and communicate health care values, and tips for drafting documents to reduce the risk of exploitation.

To register, click here.

April 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, April 10, 2018

Whither Goest Deregulation of Nursing Homes?

I've been struck by the contrast in two recent articles.  The always wise Toby Edelman, senior policy attorney at the Center for Medicare Advocacy,  was writing about Deregulating Nursing Homes.  He begins:

In lockstep with the nursing home industry, the Trump Administration is rapidly dismantling the regulations and guidance that have been developed over the past 30 years to implement and enforce the federal Nursing Home Reform Law. Until the Christmas Eve 2017 report in The New York Times, these devastating changes, often made without any public notice or comment, received no public attention.

Toby reminds us that a "regulatory system is intended to prevent avoidable bad outcomes in the first place."  But in his view, both the regulatory system and "the enforcement system .. . [are] under severe attack."

On the other hand, I just read an equally sincere essay authored by a long-term nursing home administer, entitled Why I Chose to Leave the Nursing Home Profession: A Fed-Up Executive's Story.  She writes about her frustrations in trying to do the right thing for residents:

Regulations that are so prescriptive that they dictate the exact steps required to comply with the regulation create nothing but an assembly line of care — which is exactly what we are supposed to be fighting against.

 

I find it baffling that regulations require a facility to operate a “home-like” environment, but then sends surveyors into a facility to pick apart attempts to individualize care. For example, many residents wish to have one side of their twin bed up against a wall to create an increased sense of safety, as well as assist with bed mobility. Upon notification of a surveyor that this was a form of restraint, we had to “undo” the beds that were set up this way to avoid a citation for restraints.

 

Then that started the tedious process to evaluate the resident, obtain consent, revise the care plan and ensure that documentation from the staff addressed the continued need of the resident.

 

The paternalistic approach of “we know what is best for you” will only serve to solidify the Institutional care model that seems to be the chosen and preferred method for our societal approach to caring for the frail elderly.

This writer, Julie Boggess, most recently the CEO for Bethesda Rehab and Senior Care in Chicago, admits that "regulations are needed and should serve as the foundation of quality care and service."  But, her final words are especially sobering:

But when things like a missing word in a policy or one missed temperature log recording or a date label that fell off a frozen bag of beans is more important than resident and family satisfaction and outcomes of care, there is a serious problem, and it is driving passionate hard-working individuals out of this industry.

 

The conclusion that propelled me out of this industry is that I, and my staff, were in the quest for quality and culture change alone. The government is nothing but an impediment. I thought the goal was to improve quality care, but if the real goal is to push out good people from the industry, then the government is wildly successful.

Lots to think about here.

April 10, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, State Statutes/Regulations | Permalink | Comments (0)

Sunday, April 8, 2018

Who Gets Your Stuff When You Have No Kids?

A while back we published a post about Swedish Death Cleaning and I'll hazard a guess that after you read that post, many of you went through your stuff and disposed of things.  So here's another thought-when you don't have kids, to whom do you leave your stuff?  The New York Times tackled that issue in this article, If You Don’t Have Children, What Do You Leave Behind?

The author's essay explains her dilemma as she puzzles through who of her relatives get what, and in what amount, offering her view that "wills are easier for parents because they have a natural push — the need to name guardians for their children and provide financially for them after they are gone. On the surface it’s about who gets your stuff, but it got me thinking about ways people without children create a legacy. Who will remember us?"

The author did a lot of homework, casting a wide net of inquiries and carefully considering her catch.  She discovered "patterns and creative thinking [and] saw a lot of worry, too, mostly about who will take care of us when we’re old. When it comes to legacy and relationships with young people, people start close to home. Nieces, nephews and godchildren came up in nearly every response. As did the idea of meaningful work. And that’s true for [the author]."

This is an interesting piece and I think it would be useful for our students to read. It will help remind them that estate planning is not a "one-size-fits-all" exercise.

Thanks to Professor Naomi Cahn for sending this our way.

 

April 8, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Other, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, April 3, 2018

More on Dementia Advance Directives

Recently we wrote about a dementia advance directive and now, Kaiser Health News has a story about an ‘Aggressive’ New Advance Directive Would Let Dementia Patients Refuse Food. where "a New York end-of-life agency has approved a new document that lets people stipulate in advance that they don’t want food or water if they develop severe dementia. ...The directive, finalized [in March] by the board for End Of Life Choices New York, aims to provide patients a way to hasten death in late-stage dementia, if they choose.."  The article explains that although dementia is a terminal condition, the medicaid aid-in-dying laws don't apply to someone with it. So instead, "[t]he document offers two options: one that requests “comfort feeding” — providing oral food and water if a patient appears to enjoy or allows it during the final stages of the disease — and one that would halt all assisted eating and drinking, even if a patient seems willing to accept it."

There was a significant amount of press coverage about whether an advance directive covers hand feeding as a result of a case out west where a patient with an advance directive was hand fed over her husband's objections.  Typically the directives are silent about the provision of food and fluids by hand. Here, "[t]he New York directive, in contrast, offers option A, which allows refusal of all oral assisted feeding. Option B permits comfort-focused feeding.... [with] both options ... invoked only when a patient is diagnosed with moderate or severe dementia, defined as Stages 6 or 7 of a widely used test known as the Functional Assessment Staging Tool (FAST). At those stages, patients would be unable to feed themselves or make health care decisions."  This document is different than the one  we reported on in our earlier blog post. As the article explains, "[t]he new form goes further than a similar dementia directive introduced last year by another group that supports aid-in-dying, End of Life Washington. That document says that a person with dementia who accepts food or drink should receive oral nourishment until he or she is unwilling or unable to do so... [while the]  New York document says, 'My instructions are that I do NOT want to be fed by hand even if I appear to cooperate in being fed by opening my mouth.'"

Experts interviewed for the article expressed concerns about whether such instructions would be honored.

Stay tuned.

 

April 3, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Monday, April 2, 2018

Supported Decision-Making as an Alternative to Adult Guardianship

Dickinson Law Presentation and Panel Discussing Guardianship Oversight and the Courts 3.29.18During the Continuing Judicial Education program on "Dementia Diagnosis and the Law" at Dickinson Law on March 29, I offered a list of developments potentially affecting the future of guardianships.  One item on my list could have been a stand-alone session in and of itself -- the concept of supported decision-making.  I promised the audience I would post some additional materials on the topic here.  

For background, as we discussed with the judges, under most states' laws governing guardianships, courts are obligated to search for the least restrictive alternative to a plenary guardianship.  Courts sometimes struggle with this issue, especially for older adults, if the incapacitating issue proves to be any of the forms of progressive neurocognitive disorders associated with dementia. If a judge makes a finding of incapacity, and if there is an appropriate, trustworthy guardian available, the judge may feel that it is better to leave it up to the appointed individual to strike the right balance between protection and autonomy on individual issues such as choice of housing or daily activities.  The court might find that granting full powers, but trusting the guardian to exercise the powers appropriately, is better than requiring the parties to return to the court for a series of orders, as the incapacity advances, conferring new directions for the guardian to follow. 

During the conference we confronted the issues driving the recent calls for reform of guardianship systems, including the latest well-publicized incidents of abuse of authority by an appointed guardian or a private guardianship agency, in locations such as Las Vegas, Nevada and New Mexico.

A published commentary by Cardozo Law's Rebekah Diller, an associate clinical professor, explains the movement behind supported-decision making as a better alternative: 

During  the last several decades, guardianship has been the subject of continual calls for reform, often spurred by revelations of guardian malfeasance and other abuses in the system. Recent developments in international human rights law and disability rights advocacy, however, pose a more fundamental challenge to the institution. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), with its declaration that everyone, regardless of mental disability or cognitive impairment, is entitled to make decisions and have those decisions recognized under the law, offers no less than a promise to end adult guardianship as we know it.

So, what exactly is "supported decision-making?" Professor Diller explains:

 The support can take the form of accessible formats or technological assistance in communication.  Or it can take the form of "supported decision-making" arrangement, in which "supporters" assist individuals with decision-making in relationships of trust. In whatever form, the support is an appropriate accommodation that enables the individual to enjoy the right to legal capacity.

The author warns there is no single model for supported decision-making.  Ideally, the individual designates in advance his or her desired supporter, and the movement behind this approach believes this selection can be recognized even if the individual might not be found to have the requisite capacity to enter into a contract or to execute a formal power of attorney. 

In 2015, Texas became the first state in the U.S. to pass a supported decision-making statute, and the Texas statutory approach views this option as a better alternative for individuals who need assistance in making decisions about activities of daily living, but who are not considered to be "incapacitated" as that concept is defined in guardianship law.  The Texas statute contemplates an individual who can act voluntarily, in the absence of coercion or undue influence. Information about Texas' law is available here. 

In 2016, Delaware became the second state to enact legislation enabling the option of Supported Decision-Making, with Senate Bill 230.  

In 2012, the ABA Commission on Disability Rights and the ABA Commission on Law and Aging, working with U.S. government representatives, hosted a round table discussion on supported decision making for individuals with "intellectual disabilities."   The ABA captured a host of materials related to this discussion on this website.

In 2017, the ABA House of Delegates adopted a resolution on supported decision-making and endorsed its possible use as a less-restrictive alternative to guardianship, including use of this approach as grounds for termination of an existing guardianship and restoration of rights.   

Earlier this year, on February 15, 2018, the ABA hosted a webinar on "Supported Decision-Making as a Less Restrictive Alternative: What Judges Need to Know."  While the webinar appears to have been offered only as a one-time "live" option, perhaps a recording will become available in the near future.  Here's an ABA webpage providing details. 

My special thanks to Pennsylvania Elder Law Attorney Sally Schoffstall, who served as a panelist at the Dickinson Law event last week, for providing me with a copy of The Arc's information on the Texas Supported Decision-Making law, linked above. Additional thanks to Dickinson Law James Adams for photographing the conference! 

April 2, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Programs/CLEs, Property Management, State Statutes/Regulations | Permalink | Comments (0)

Friday, March 30, 2018

Medically-Assisted Dying Advances in Hawaii

The Hawaii legislature has approved legislation to legalize Medical Aid-in-Dying, according to the New York Times. Doctor-Assisted Suicide Close to Becoming Law in Hawaii reports that the bill now goes to the Hawaii governor, who has indicated that he will sign the bill.  The bill contains safeguards similar to other medical aid-in-dying statutes, including

a requirement that two health care providers confirm a patient's diagnosis, prognosis, ability to make decisions and that they voluntarily made the request. A counselor also must determine that the patient is capable and does not appear to be suffering from a lack of treatment of depression.

The patient must make two oral requests for the life-ending medication, with a 20-day waiting period between each. They also must sign a written request witnessed by two people, one of whom can't be a relative.

The measure creates criminal penalties for anyone who tampers with a request or coerces a prescription request.

Assuming the Governor signs the bill, Hawaii will be the 6th state to have such a law, joining Washington, Oregon, Vermont, Colorado and California, along with the District of Columbia.  Montana, although without such a statute, has a state supreme court opinion addressing the issue.

March 30, 2018 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Thursday, March 29, 2018

New Mexico, Where New Guardianship Laws Will Take Effect July 1, 2018, Struggles With Reporting Systems

Earlier this week, The Albuquerque Journal reported on continued problems with accountability for court-appointed guardians within New Mexico. Colleen Heild writes:

What’s become of Elizabeth Hamel? Hamel is among dozens of people placed under a legal guardianship or conservator in southern New Mexico over the past 20 years whose welfare is unknown – at least according to state district court records. . . . Nothing in the online court docket sheet indicates that Hamel’s case has been closed. But since being appointed, Advocate Services of Las Cruces hasn’t filed any annual reports about Hamel’s well-being or finances, the docket sheet shows.

 

There’s no indication as to whether she is dead or alive, or if the  guardianship/conservatorship has been revoked. . . . 

 

As New Mexico prepares for a new law, effective July 1, to help its ailing guardianship system, the state’s district courts still don’t have a uniform way to ensure guardian compliance with reporting laws that have been on the books at least since 1989.

 

State Sen. Jerry Ortiz y Pino, D-Albuquerque, said last week that he was disappointed that annual reports haven’t been filed in some cases.

 

“And I’m not surprised the courts wouldn’t know,” said Ortiz y Pino, a longtime advocate for reform. “That’s what we ran into over and over again, the lack of any kind of system to make it possible to log them (annual reports) in, let alone read them, let alone send somebody out to verify whether or not what they’re reporting is the truth. Those are the kind of things we shouldn’t be missing. Somebody should be at least saying, ‘Hey, you never did file a report.’ ”

For more, read Missing Reports Plague Guardianship System (3/25/18). 

March 29, 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 (1)

Tuesday, March 27, 2018

Florida Governor Signs Generator Bill

Florida's governor signed into law a bill that requires nursing homes and ALFs to have generators. The Tampa Bay Times reports  that facilities will be required to not only have the generators but sufficient fuel.  Rick Scott signs bills requiring generators in nursing homes, assisted living facilities  explains that "[t]he bills require the facilities to keep backup generators capable of running air conditioners when the power goes out. They must provide at least 30 square feet of cool space for each resident – at a temperature of no more than 81 degrees – and keep several days worth of fuel on hand."

With hurricane season starting June 1, 2018, it's time to be prepared!

March 27, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Monday, March 26, 2018

Maryland Courts Tackle the Challenge on Guardianship Reform

Maryland is among the several states putting serious energy into modernizing and reforming rules governing guardianships, with major new rules that took effect on January 1, 2018.  In Bifocal, the journal of the ABA Commission on Law and Aging, the Honorable Karen Murphy Jensen, who chaired a multidisciplinary workgroup tackling the state reforms, describes the process during an interview.  She notes the work ahead for many: 

Judge Jensen: These are big changes and courts, attorneys, and guardians need time to navigate them. Maryland’s circuit courts are not uniform and the changes will affect each court differently. Guardianship attorneys need to familiarize themselves with the new requirements and procedural changes. The orientation and training requirements add a step to the process that may overwhelm some prospective guardians and each individual court will have to respond to that reality. 

 

Along the way, the Workgroup consulted with and got feedback from judges, court staff, private attorneys, public agencies, and other service providers outside of the Workgroup. It was clear that the Workgroup would need to provide ongoing technical assistance and develop resources to help everyone navigate these changes once in effect. While sensitive to the impact on family guardians, we believe it is important for guardians to understand what is expected of them and know what tools are available upfront, and for courts to screen out those unable to take on the responsibility.

For more, read: Maryland Judicial Workgroup Spearheads Guardianship Reforms, Vol. 39, Issue 3, Bifocal. 

March 26, 2018 in Cognitive Impairment, 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, March 25, 2018

NAELA Past President Howard Krooks Writes Thoughtfully About Effect of Parkland Shooting on His Family

Seasoned Elder Law attorneys often make the news, but today the sober reason was because I was reading two of Elder Law guru Howard Krooks's Op-Ed pieces for a Florida newspaper, about his son's fortunate escape from the Parkland School shooting and the aftermath for his family and for many, many others, especially those with more tragic outcomes.

 Howard, who is a CELA and past president of the National Academy of Elder Law Attorneys (NAELA), writes in part:  

Now it’s Wednesday morning. We decide Noah will go to school today. Zachary Cruz [the brother of the school shooter] is being held on $500,000 bond. He will undergo a psychological evaluation. His home in Lake Worth will be searched for weapons. And Gov. Rick Scott has requested that an armed law enforcement officer “secure every point of entry” at the school.

 

Good, I think. I feel safe now sending my son to school. Not.

 

My wife came home this morning from dropping off Noah, sobbing. “Why are you crying?” I ask. “Because I just dropped our son off at school, and I don’t know if he will be safe. Will he come home this afternoon? Will we ever see him again? And what if we beef up security at MSD so that nobody unauthorized can enter the campus — but our other son’s middle school is right next door, so the person can just go there and wreak havoc on the middle school campus, instead?”

 

She is sitting on our bed, head in her hands, filled with fear. Post-Traumatic Stress Disorder is real.

 

We need to do better. The legislation Gov. Scott signed on March 9 was a start. But it was just the beginning of the sweeping structural change needed in this country to send our children safely to school each day.

 

We in Parkland want to remain positive. We want to move forward. And we want to honor those who lost their lives or were injured on that terrible day. But most of all, we want to use this tragedy to bring about positive change. . . . 

Thank you, Howard.  For the full Opinion piece, see A Parkland Father's Plea for Help, and his earlier article, As School Shooter Stalks, Texts Between A Father and Son, both in the Sun Sentinel.

March 25, 2018 in Crimes, Current Affairs, Ethical Issues, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, March 23, 2018

National Council on Disability Calls for Nationwide Reforms for Guardianships

On March 22, 2018, the National Council on Disability (NCD) released a new 200-page report and recommendations,  calling for substantial reform of the rules and processes used to place individuals with disabilities or the elderly under guardianships. 

As set forth in the press release, NCD's findings include:

  • Guardianship is often imposed when not warranted by facts or circumstances, because guardianship proceedings often operate under erroneous assumptions that people with disabilities lack capability to make autonomous decisions.
  • Capacity determinations often lack sufficient scientific or evidentiary basis.
  • Although guardianship is considered a protective measure, courts often lack adequate resources, technical infrastructure, and training to monitor guardianships effectively and hold guardians accountable, which at times allows for guardians to use their positions to financially exploit people subject to guardianships or subject them to abuse or neglect.
  • People with disabilities are often denied due process rights in guardianship proceedings. 
  • Although most state laws require consideration of less-restrictive alternatives, courts do little to enforce those requirements.
  • Similarly, though every state has a process for the restoration of one’s rights lost through guardianship, the process is rarely used.
  • There is a lack of data on existing guardianships and newly filed guardianships, which frustrates efforts of policymakers to make determinations about necessary areas for reform.

NCD also makes seven sets of specific recommendations, often calling upon the U.S. Department of Justice to take a leadership position in protecting the civil rights of individuals, including providing states with guidance and support for review of existing guardianships with a goal of assessing the potential for restoration of rights.  

Here is a link providing access to the full report, Beyond Guardianship: Toward Alternative That Promote Greater Self-Determination, and to a literature review, and to a qualitative research report summary in support of the NCD recommendations.

My special thanks to Pennsylvania Superior Court Judge Paula Ott for sending me timely information on these publications.

March 23, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, March 22, 2018

Free Webinar Protecting Elders From Scams

The National Center of Law & Elder Rights has announced their next webinar,  Legal Basics: Protecting Older Adults Against Fraudulent Schemes and Scams. The webinar is scheduled for April 10, 2018 at 2 edt.  Here's a description of the webinar:

With savings and assets accumulated over a lifetime, older adults are attractive targets for individuals promoting fraudulent schemes and scams. Scammers use deception, misrepresentation and threats to convince older adults to send money or provide personal financial information. Most frauds and scams go unreported. 

This webcast will provide an overview of the frauds and scams aimed at older adults, discuss legal protections, and provide resources to aid older adults defrauded by the individuals and business that promote these scams. The webcast will also focus on efforts by the Federal Trade Commission to prevent older adults from falling victim to these scams. 

To register for this free webinar, click here.

March 22, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Tuesday, March 20, 2018

Senate Committee on Aging: Top 10 Elder Scams

A little mid-week reading for you. The Senate Committee on Aging has released their 2018 Fraud Book, listing the top 10 elder scams of 2018.  Fighting Fraud: Senate Aging Committee Identifies Top 10 Scams Targeting Our Nation’s Seniors  lists the top 10 scams of the year, based on reports to the hotline, which are (drum roll please) 

IRS Impersonation Scams

Robocalls and Unsolicited Phone Calls

Sweepstakes Scams / Jamaican Lottery Scams

"Can You Hear Me?” Scams

Grandparent Scams

Computer Tech Support Scam

Romance Scams

Elder Financial Abuse

Identity Theft

Government Grant Scams

Here is the executive summary for the report:

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

The report is available here.

From January 1, 2017, through December 31, 2017, the Senate Aging Committee’s Fraud Hotline received a total of 1,463 complaints from residents all across the country. Calls pertaining to the top 10 scams featured in this report accounted for more than 75 percent of the complaints.

                The top complaint, the focus of more than twice as many calls as any other scam, involves seniors who receive calls from fraudsters posing as agents of the Internal Revenue Service (IRS). These criminals falsely accuse seniors of owing back taxes and penalties in order to scam them. Due to the extremely high call volume and continued reports from constituents from across the country, the Aging Committee held a hearing on April 15, 2015, to investigate and raise awareness about the IRS imposter scam. Prior to a large law enforcement crackdown in October 2016, nearly three out of four calls to our Hotline involved the IRS impersonation scam. In the three months after the arrests, reports of the scam into the Committee’s hotline dropped by an incredible 94 percent. Though the numbers have since rebounded somewhat, they are still far below the levels we have seen in the past.

                The second most common scam reported to the Hotline involved robocalls or unwanted telephone calls. On June 10, 2015, the Aging Committee held a hearing on the increase in these calls that are made despite the national Do-Not-Call Registry. The Committee examined how the rise of new technology has made it easier for scammers to contact and deceive consumers and has rendered the Do-Not-Call registry ineffective in many ways. On October 4, 2017, the Aging Committee held an additional hearing on robocalls, this time examining recent developments by both the private and public sectors to combat robocalls and protect seniors from fraud.

Sweepstakes scams, such as the Jamaican lottery scam, continue to be a problem for seniors, placing third on the list. A March 13, 2013, Aging Committee hearing and investigation helped bring attention to these scams and put pressure on the Jamaican government to pass laws cracking down on criminals who convinced unwitting American victims that they had been winners of the Jamaican lottery. The United States government has had some recent success in bringing individuals connected to the Jamaican lottery scam to trial, but these types of scams continue to plague seniors.

A new scam to make the top 10 list for 2017 involves consumers receiving calls in which the caller would simply ask “Are you there?” or “Can you hear me?” in order to prompt the recipient to say “yes.” According to the Federal Trade Commission (FTC), these illegal robocalls are pre-recorded, and are

designed to identify numbers that consumers are likely to answer, allowing scammers to better identify and connect with potential victims. The increased use of this tactic by scammers in robocalls last year demonstrates how sophisticated scammers are.

Grandparent scams, the focus of a July 16, 2014, Aging Committee hearing, were next on the list. In these scams, fraudsters call a senior pretending to be a family member, often a grandchild, and claim to be in urgent need or money to cover an emergency, medical care, or a legal problem.

Computer scams were sixth on the list and the subject of an October 21, 2015, Committee hearing. Although there are many variations of computer scams, fraudsters typically claim to represent a well-known technology company and attempt to convince victims to provide them with access to their computers. Scammers often demand that victims pay for bogus tech support services through a wire transfer, or, worse yet, obtain victims’ passwords and gain access to financial accounts.

Romance scams were seventh on the list. These calls are from scammers who typically create a fake online dating profile to attract victims. Once a scammer has gained a victim’s trust over weeks, months, or even years – the scammer requests money to pay for an unexpected bill, an emergency, or another alleged expense or to come visit the victim – a trip that will never occur.

Elder financial abuse was eighth on the list and the topic of a February 4, 2015, Committee hearing. The calls focused on the illegal or improper use of an older adult’s funds, property, or assets. Chairman Susan M. Collins, former Ranking Member Claire McCaskill, and current Ranking Member Robert P. Casey Jr. have introduced the Senior $afe Act, which would allow trained financial services employees to report suspected cases of financial exploitation to the proper authorities without concern that they would be sued for doing so. The Committee also examined the financial abuse of guardians and other court appointed fiduciaries at a hearing in November 2016.

Identify theft was the ninth most reported consumer complaint to the Fraud Hotline in 2017. This wide-ranging category includes calls about actual theft of a wallet or mail, online impersonation, or other illegal efforts to obtain a person’s identifiable information. On October 7, 2015, the Aging Committee held a hearing titled “Ringing Off the Hook: Examining the Proliferation of Unwanted Calls”, to assess the federal government’s progress in complying with a new law requiring the removal of seniors’ Social Security numbers from their Medicare cards, which will help prevent identity theft. Medicare will start mailing the new cards in April 2018.

            Government grant scams rounded out the top 10 scams to the Fraud Hotline last year. In these scams, thieves call victims and pretend to be from a fictitious “Government Grants Department.” The con artists then tell the victims that they must pay a fee before receiving the grant.

rant.

TThe 60 page report is available here.

March 20, 2018 in Books, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Tuesday, March 13, 2018

Expanding the Right to Physician-Aided Dying?

The Washington Post recently ran an article about efforts underway by some folks to expand Oregon's physician-aided dying law to include those individuals who do not have terminal illnesses. In Oregon, pushing to give patients with degenerative diseases the right to die explains efforts to expand the scope of Oregon's law to cover those with degenerative diseases, such as "[p]eople with Alzheimer’s, Parkinson’s, Huntington’s, multiple sclerosis and a host of other degenerative diseases [who] are generally excluded from the Oregon law." Why? you might ask. "[B]ecause some degenerative diseases aren’t fatal. People die with Parkinson’s, for example, not because of it. Other diseases, such as advanced Alzheimer’s, rob people of the cognition they need to legally request the suicide medications."

The article notes that this effort isn't limited to just Oregon. In fact, there are "[r]elatively modest drives ... afoot in Washington state and California, where organizations have launched education campaigns on how people can fill out instructions for future caregivers to withhold food and drink, thereby carrying out an option that is legal to anybody: death by starvation and dehydration. (It is often referred to as the “voluntarily stopping eating and drinking” method.)"

Interestingly, the article reports that not all in the right to die movement are in favor of broadening the law.  In fact "groups such as Compassion & Choices, the nation’s largest right-to-die organization, and the Death With Dignity National Center, a main author of the original law, have little appetite for widening access to lethal drugs in the states where medically assisted suicide already is legal."

These initiatives aren't just limited to the U.S. The story reports in Canada The Quebec "provincial government is studying the possibility of legalizing euthanasia for Alzheimer’s patients. Unlike medically assisted suicide, a medical doctor would administer the fatal dose via injection. A survey in September found that 91 percent of the Canadian province’s medical caregivers support the idea."

The Oregon legislature has taken the first step,  the passage last month of legislation to investigate "how to improve the process of creating and carrying out advance directives. Gov. Kate Brown (D) is expected to sign it."

The article also reminds us of the Harris case where Mrs. Harris, with an advance directive, was spoon fed by the facility where she resided.  There have been a number of folks requesting language added to their advance directives to avoid the spoon-feeding issue according to the attorney for Mr. Harris.

March 13, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (1)

Thursday, March 8, 2018

The Toughest Issue for Protective Service Agencies? Self Neglect...

Boy, did this New York Times piece by always interesting Paula Span resonate for me.  I spent several years serving as designated counsel for individuals who were facing unwanted intervention by Adult Protective Services. The issue of self-neglect is just plain tough -- and it doesn't get any easier with age.  From the article:

[T]he state adult protective services agency sent a caseworker to the man’s home. She found an 86-year-old Vietnam veteran in a dirty, cluttered house full of empty liquor bottles. His legs swollen by chronic cellulitis, he could barely walk, so he used a scooter. He missed doctor’s appointments. He had the medications he needed for cellulitis and diabetes, but didn’t take them. Though he had a functioning toilet, he preferred to urinate into plastic gallon jugs. He didn’t clean up after his dogs. He wasn’t eating well. . . . 

 

In the Texan’s case, “he wasn’t happy that A.P.S. was there, and he denied that he was being exploited,” said Raymond Kirsch, an agency investigator who became involved. “He also denied that he had a drinking problem.”

 

Grudgingly, he allowed the agency to set up a thorough housecleaning, to start sending a home care aide and to arrange for Meals on Wheels.

 

But on a follow-up visit a month later, the caseworker found her client markedly deteriorated. His swollen legs now oozed. He’d become personally filthy and was ranting incoherently. She returned with an ambulance and a doctor who determined that the client lacked the capacity to make medical decisions.

 

Off he went to a San Antonio hospital, under an emergency court order. The caseworker locked up the house and kenneled the dogs. . . . 

Our special thanks to University of Illinois Law's Professor Dick Kaplan for pointing us to this article.  For the outcome of this particular case, read to the end of the full article, Elder Abuse: Sometimes It's Self-Inflicted.

March 8, 2018 in Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, March 6, 2018

Florida Moves Forward on Backup Generator Requirements for Nursing Homes

With little time left in the 2018 legislative session, will the legislature pass a rule requiring nursing homes to have emergency generator back up?  According to Health News Florida, Rules For Backup Power For Nursing Homes Go To Florida House. The bill "would require facilities to have a generator capable of keeping facilities at 81 degrees or lower for at least four days. It also requires them to keep 72 hours of fuel on site." According to the article, ALFs are not included in the requirement. Assuming approval then Florida's "577 nursing homes in Florida must be in compliance by July 1, but as of Jan. 8, 108 were already in compliance. AHCA can grant an extension until Jan. 1, 2019, for nursing homes that would face delays in installing equipment."  Stay tuned-we will know in a matter of days.

March 6, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 5, 2018

News Feature Focuses on Court-Appointed Guardian in Pennsylvania, Raising Important Systemic Questions

From Nicole Brambila, an investigative journalist for the Reading [Pennsylvania] Eagle, comes an article examining the history of a specific individual appointed by courts to serve as a guardian in multiple cases, in different counties in Pennsylvania.  The article raises important questions about court oversight, including but not limited to whether there should be mandatory criminal background checks for those serving as court-appointed fiduciaries:  

If [an elderly couple in Montgomery County, Pennsylvania] were astonished to learn the court-appointed guardian [for the 79-year-old husband] had not been paying the mortgage and other bills, their surprise would pale in comparison to the revelations yet to come.  Unbeknownst to them, Byars [the guardian in question] had been convicted multiple times of financial theft.

 

Her most recent arrest came in 2005.  She pleaded guilty to felony fraud and was sentenced to 37 months in a federal prison after cashing $20,000 in blank checks [she] found while rummaging through trash cans at a Virginia post office. 

The article points to another case in Philadelphia Orphans Court, where an attorney representing family members of a different person alleged to be in need of a guardian, looked into the background of Byars, and discovered records detailing her history.  The attorney was successful in having her removed as the court-appointed guardian in that case.  The Reading Eagle reporter writes:

For six months she continued serving as guardian to 52 incapacitated Philadelphians. No other Philadelphia judge removed her until after the Reading Eagle made dozens of inquiries in January with the court, Adult Protective Services, the Pennsylvania Department of Aging and state lawmakers about her appointments. . . . 

 

Philadelphia Orphans Court works with more than a dozen professional guardians. Ten of these, including Byars, carry some of the highest caseloads: 22, 48, 54 and more. But none more than Byars, who was appointed in Philadelphia alone 75 times from 2014 through 2016, according to court dockets.

For more, read Unguarded: Montgomery County Couple's Trust Betrayed, published March 4, 2018 in the Reading Eagle [paywall protected, although there is a $1 fee for single day access].  

 

March 5, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)