Monday, March 14, 2016
Here is a 12 minute account of two families involved in older person guardianships, where the court appointed a single, non-family member as guardian in Clark County, Nevada. The presentation is by Al Jazeera America, aired for the first time in March 2016:
The events in Nevada have sparked larger concerns about "guardianship abuse." The video is both disturbing and frustrating, especially as we hear primarily from family members in the presentation. There are hints of important, underlying legal issues, including:
- adequacy of notice to alleged incapacitated persons (AIP) prior to any court proceeding;
- adequacy of notice to family members of the AIP
- proper use of guardians ad litem
- availability of legal counsel to the AIP
- what procedural requirements exist for a finding of incapacity
- what definition is used for incapacity
- whether limited guardianships are used, and if not, why not
- what training, if any, is given to guardians
- what accounting methods are used for review of conserved funds
The important topics revealed in the news reports seem ripe for in-depth research by objective academics, including law school academics. Anyone looking for that "hot" topic for next summer's project?
For earlier Elder Law Prof Blog posts on this topic see:
Thursday, March 10, 2016
One of my regular searches on legal research engines is for "filial support" and "indigent support." This month that search turned up pending legislation in West Virginia that appears to be on a fast track. West Virginia House Bill No. 4380 proposes to add "spouse" to the list of family members who may be personally liable to pay funeral service expenses. On first glance, the bill didn't seem all that surprising to me as the bill appeared mostly to be plugging a hole in a law that already made children, father, brothers and sister, and the mother of the deceased potentially liable for such costs. If you are going to include all of those family members, why not the spouse?
However, as I dug a little deeper, I noticed the bill also would cap state responsibility for indigent death-related services at "not more than $1,000" for cremations and "$1,250 for those who are buried." The bill would increase the documentation of financial need, including copies of bank statements and income tax information for the deceased, before state assistance can be granted.
It turns out that these bills are sad evidence of the increased number of requests for indigent burial assistance in West Virginia. A spokesman for the state agency supervising the program explained to legislators that the $2,050,000 fiscal year budget would "run out of money by the end of" February, 2016." There were already some 1,820 indigent burials in 2015.
For more on this sign of tough times, see the West Virginia press story, "WV Burial Program for Poor to Run Out of Money."
Monday, March 7, 2016
In the last months before the death of Casey Kasem, children from his first marriage and his second wife engaged in a high profile struggle over where, how and with whom the aging celebrity would spend time, with the disputes -- and the famous disc jockey himself -- crossing state borders. The controversies lasted even after his death on June 15, 2014, as his second wife reportedly flew his body out of the U.S. for burial in Oslow, Norway.
Drawing upon these traumatic experiences, one daughter, Kerri Kasem, advocates for passage of state legislation in an effort to better define family members' rights of access and communication in such complicated family matters. Her foundation, Kasem Cares, will host a "Conference on Aging" on April 21-23, 2016 in Orange County California and it seems likely from the agenda that proposed better practices will be discussed.
To date, at least three states have adopted new laws that appear to reflect the legal issues in the Casey Kasem family disputes, including:
- Iowa, I.C.A. Section 635.635 (amended) and Section 633.637A (added), providing that all adult wards subject to a court-ordered guardianship continue to have the right to communicate, visit and interact with other persons, and that a court will approve a guardian's denial of such interaction "only upon a showing of good cause." Changes to the law became effective on July 1, 2015.
- Texas, Estates Code, Section 1151.055, "Application by Certain Relatives for Access to Ward; Hearing and Court Order, and Section 1151.056 on "Guardian's Duty to Inform Certain Relatives About Ward's Health and Residence," effective June 19, 2015. Together these guardianship-connected rules permit designated family members to apply for a court order permitting communication or visitation with a ward, and obligate a guardian to give family members notice of the ward's admission to medical facilities, change of residence, or death, unless the family member makes a written "waiver" of such communications. For more see the Texas Guardianship Law Update in the September/October 2015 issue of The Houston Lawyer.
- California, Assembly Bill No. 1085, amended Cal. Prob. Code Section 2351, to provide that not only does a person who is the subject of a guardianship or conservatorship continue to have "personal rights" such as the "right to receive visitors," but that the court may issue an order that "grants the conservator the power to limit or enforce the conservatee's rights, or that "directs the conservator to allow those visitors, telephone calls and personal mail." The California Probate Code was further changed to add provisions, Section 2361 and Section 4691, expressly providing that conservators shall mail notice of a conservatee's death to any spouse, domestic partner or, in essence, any person who has "requested special notice," and imposing a similar duty of notice regarding death of a principal, for certain agents acting under specified powers in a power of attorney for health care. For more on the California legislation, signed by California Governor Brown on July 14, 2015, and made effective on January 1, 2016, see the Los Angeles Times article, Casey Kasem Controversy Leads to New Rights for Children of Ill Parents.
These three new pieces of legislation, despite similarities in purpose -- i.e., recognition of family members' interest in continued communications with a loved one who has become a "court ward," -- are quite different in effect. It will be important to see whether such provisions can be used to ease family tensions or instead serve as a frustrating, procedural gauntlet for warring factions. The Texas law seems to me to go the furthest in recognizing an affirmative right of a family member to challenge an attempt by a guardian or conservator to limit access.
March 7, 2016 in Cognitive Impairment, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Wednesday, March 2, 2016
The New York Times ran a story at the end of February about the appeal of a Continuing Care Retirement Community or CCRC. (Just a note that LeadingAge, a group of aging service organizations is using Life Plan Communities). The Everything-in-One Promise of a Continuing Care Community examines the appeal of CCRCs. Looking at how it works, the article discusses the often-times hefty entrance fee and compares that to a "fee for service model". The article explains what one gets (and what one doesn't) when one is signing a CCRC contract: "[k]eep in mind that few of these contracts involve direct, conventional purchase of a housing unit. In most cases, the resident buys only the lifetime right to live in a community, take advantage of its range of amenities and services, and receive care there. The units generally are not bought and sold on the open market."
My co-blogger, Professor Pearson is quoted in the article discussing regulatory oversight and transparency:
“There’s a lack of transparency with C.C.R.C.s that’s resulted in weaker trust,” said Katherine C. Pearson, a professor at the Dickinson School of Law of Pennsylvania State University who has testified before Congress on the issue. “You need to visit several facilities, talk to residents, look at past cost increases and five years of financial records.”
Professor Pearson, who talks with continuing care community residents around the country, said there was no one rule of thumb to use when evaluating these communities. A prospective resident generally wants a community that is active and engaged and “supports healthy living,” she said. But given the magnitude of the decision (after all, it is often the last major purchase someone will ever make), it deserves very careful consideration.
“Get as much financial information as you can,” she said. “This is not an impulse buy.”
The article offers some practical advice when considering a CCRC. The article notes it isn't as easy as an apples to apples comparison since there is no government rating system of CCRCs and "[t]he major drawback in evaluating continuing care communities is the complexity of their contracts, which come in a number of variations. Some may require a deposit of up to $1 million, while others may charge only monthly fees. Refunds may be difficult to obtain and depend upon the length of stay and other requirements. Contract details have to be read carefully and financial statements reviewed." The article suggests
- review of the contract by a team of professionals, and look specifically at the contract regarding refunds of the entrance fee, whether there is a rescission period, how a decision is made if the resident needs a higher level of care and the financial stability of the company.
visiting the CCRC and talking to residents and staff. Visit all areas of the CCRC.
compare several CCRCs and check with the appropriate state agency for any complaints filed vs. the CCRC. Ask around-the article suggests the local senior center might be a good place to find out more.
Friday, February 26, 2016
Quinnipiac Law Student Katherine C. Clark has recently published a note titled "Duty to Reform: Updating Connecticut's Filial Responsibility Statutes," in the Quinnipiac Probate Law Journal (Vol. 29, page 45, 2015).
The author argues for repeal of Connecticut's criminal law and modifications of the state's civil laws regarding filial obligations, arguing in part that:
Connecticut should define indigence to include only those elderly people receiving state assistance, and those whose total income falls below a certain amount. This limited definition ensures that those elderly people who have a legitimate need for assistance would have their needs met.
Additionally, using those two benchmarks could limit any sort of fraudulent claims. It is relatively easy to determine if a party receives state assistance, so that verification is not overly burdensome. However, by also taking into account the total income, parents who are not recipients of state assistance, but who still have unfulfilled needs, may still gain access to the care they need. Another important consideration is determining at what age parents are entitled to protection. Setting a specific age, such as 65, would make it clear when the statutory obligation begins.
Wednesday, February 17, 2016
In 2010, I spent several months of my sabbatical in Northern Ireland. I soon learned that older people there are highly organized and very visible, working together on issues such as protection from abuse, housing, utility costs, elder care options, access to benefits and more.
They knew that their best chances for success were to band together to tackle problems. They knew that they could not depend on a few to keep the work going, and they consciously brought "younger" seniors into leadership positions to keep the advocacy teams well staffed and to provide continuity of effort. Plus, they were not shy about presenting a unified national platform of concerns and recommended solutions -- as suggested by that year's "Pensioners' Manifesto," promoted at parades and public gatherings. The advocacy plan was supported by AgeNI, Age Sector Platform, Changing Ageing Partnership and other "separate" organizations.
In the US, seniors' concerns often cross jurisdictional boundaries, including state boundaries. The distances are farther apart in the U.S. than in Northern Ireland, but again there can be power in organizing. As part of my research, I've been watching several groups across the country using the power of the internet to share information and "gather " in order to advocate for solutions to common problems. A key to success seems to be advocating from a position of strength in numbers and shared concerns.
One of the U.S. organizations I've watched closely has been the National Continuing Care Residents Association or NaCCRA, a national body that grew out of early advocacy on behalf of residents in life care and continuing care residences in Florida. Residents came to recognize that as much as they appreciate and even love their individual communities, there are often common concerns about matters such as provider accountability for entrance fees and service fees paid by residents, understanding Fair Housing and ADA rules for residents with disabilities, residents' rights during changes of "ownership," resident rights during provider insolvency, reorganizations or bankruptcy, transparency of management decision-making and more.
NaCCRA has both individual members and state chapters, and recently, resident-members in the State of Washington recognized that stronger funding of the national organization through the state chapters is needed to support effective advocacy at every level. By comparison, the senior housing providers certainly share information (and money) on a national basis -- see e.,g., LeadingAge and American Seniors Housing Association -- especially when addressing their advocacy positions with regulators and government leaders.
It will be interesting to see whether residents in CCRCs and Life Care communities in other states join Washington residents in supporting a strong national team through NaCCRA.
Tuesday, February 16, 2016
Our friends at the Weinberg Center for Elder Abuse Prevention sent application information for law students interested in a summer 2016 internship in New York:
The David Berg Center for Law and Aging is seeking select students for its Summer 2016 internship programs. The Center focuses on a wide range of legal and policy issues affecting the older adult population and victims of elder abuse and exploitation.
Interns will be offered the unique opportunity to work at the nation’s first elder abuse shelter, The Harry and Jeanette Weinberg Center for Elder Abuse Prevention at the Hebrew Home at Riverdale. Located in the Riverdale section of the Bronx, New York, on 17 acres of the Hudson River, the comprehensive elder abuse center provides an emergency residential shelter as well as psychosocial, health care and legal advocacy and community-based services for victims of elder abuse.
Under the direct supervision of the Weinberg Center’s Assistant Director and General Counsel, students will potentially be exposed to legal practice in all five boroughs of New York City and Westchester County. Students may have the opportunity to work collaboratively with Weinberg Center partners such as the New York Attorney General’s Office, the New York City Police Department, District Attorneys’ Offices and Family Justice Centers. Interns will complete substantive research and writing on the different legal and policy issues impacting the older adult population and victims of elder abuse.
Past issues have included HIPAA regulations, questions surrounding legal capacity, immigration, powers of attorney, Medicaid eligibility, copyright, and right to privacy. The interns will gain case management skills and potential courtroom exposure through drafting petitions for guardianship, family court orders of protection and housing court matters. The interns will also have the opportunity to participate in multidisciplinary conferences, meetings of the American Bar Association Senior Lawyer’s Division’s Elder Abuse Task Force and other community outreach and training events. To apply, please send a resume, cover letter and writing sample to email@example.com.
Wednesday, February 10, 2016
Elderlawprof blog founder, elderlaw prof extraordinaire and renaissance woman, Professor Kim Dayton sent the following article Nursing homes free to hire applicants with criminal histories; Pennsylvania won't appeal decision striking down law . According to the article, the state has decided not to appeal a decision striking a Pennsylvania law that "prohibiting nursing homes and long-term care facilities from hiring employees with criminal histories." The article explains that the law contained a lifetime employment ban in the state's APS statute. Part of the challenge to the law is that the statute didn't differentiate between the types of crimes, circumstances or even when the crime was committed, so something minor or a crime committed decades ago would count in imposing the lifetime ban.
The opinion is available here.
Tuesday, February 2, 2016
Challenge to Attorney General's "Outsourcing" of Consumer Protection Suits Against Nursing Homes Fails in PA
In GGNSC v. Kane, decided January 11, 2016, the Pennsylvania Commonwealth Court rejected a challenge by owners and operators of long-term care facilities to the use of a private law firm to investigate and pursue claims based on alleged improper billing, contracting and marketing practices. The ruling was 6 to 1, with the lone dissenting judge not filing an opinion.
In the challenge, begun as a declaratory judgment action, the Facilities contended the investigations were "not based on any material consumer complaints," but were instead based on efforts by the law firm (Cohen Milstein) to generate lawsuits in Pennsylvania and other states. In Pennsylvania, beginning in 2012, the Pennsylvania Office of Attorney General signed a contingent fee agreements with the Cohen Milstein law firm, which has a history of pursuing class action suits in business and consumer protection areas. The Court permitted the Pennsylvania Health Care Association, a trade group for some 450 long-term care providers in the state, to join the Facilities' challenge as a petitioner.
In July 2015, the Facilities' challenge was "overtaken" by a Consumer Protection Law enforcement lawsuit filed by the Pennsylvania AG against two GGNSC facilities and 12 Golden Living nursing homes. Cohen Milstein was listed as counsel representing the State. Some of the Facilities' original arguments for blocking the Cohen Milstein investigatory actions became moot after the consumer protection suit was filed or could be addressed in the enforcement suit, according to the Commonwealth Court decision. (Other states have also contracted with Cohen Milstein to bring nursing home cases, including New Mexico.)
However, the Facilities continued to argue that only the Pennsylvania Department of Health (DOH) had "authority" to investigate or pursue litigation regarding quality of care. The Commonwealth Court disagreed:
Any investigation or enforcement action initiated by OAG is directly related to "unfair or deceptive acts or practices" purportedly committed by the Facilities with respect to the staffing levels at their facilities. As a result, while minimum staffing levels may be regulated by DOH for health and safety purposes, any representations, advertisements or agreements that the Facilities made with their residents with respect to staffing levels, whether in accord with those required by statute or regulation or not, may properly be enforced by OAG through its authority conferred by the Administrative Code and the Consumer Protection Law. Such action is proper under the foregoing statutes and does not constitute any impermissible administrative rulemaking regardless of whatever evidence OAG uses to establish a violation, including any type of staffing model. What OAG is seeking to enforce is the level of staffing that the Facilities either represented, advertised, or promised to provide to their residents and not what level OAG deems to be appropriate for the care of such residents.
Further, the Commonwealth Court ruled the Facilities "lacked standing" to challenge the OAG's use of a private law firm to investigate or prosecute the claims under the Administrative Code or the Consumer Protection Law, citing the Pennsylvania Supreme Court's similar ruling in Commonwealth v. Janssen Pharmaceutica, Inc. in 2010, a suit about alleged off-label drug prescriptions, pursued with the assistance of contracted outside counsel.
The outsourcing of state claims for consumer protection suits raises interesting issues. Such financial arrangements with outside law firms may be especially attractive to states in terms of risk/reward potentials, as the private firms typically agree to fund all or a portion of litigation costs for the class-action-like suits, with lower contingent fee percentages (10 to 20%) than you would see when such a firm handles suits on behalf of private plaintiffs. The option could be attractive to financially-strapped states or "embattled" state prosecutors such as the Pennsylvania AG.
Companies, particularly health care companies, have organized efforts to resist what they see as "abusive" lawsuits generated by private law firms. As one industry-focused report argues here, private firms lack a proper "public" perspective, failing to take into account the impact on business development, while also arm-twisting companies to extract settlements, arguing this comes at a high-dollar cost to the state's residents.
Thursday, January 28, 2016
Earlier this month, CMS published a CMCS information bulletin with the subject, Options for Medicaid Payments in the Implementation of the Fair Labor Standards Act Regulation Changes . This is a re-release of the informational bulletin originally published in early July of 2014. Why? Because this informational bulletin is intended
to assist states in understanding how they may ament their current 1915(c) waivers and state plan (1905(a), 1915(i), 1915(j), and 1915(k)) personal care services to implement Fair Labor Standards Act (FLSA) changes in a timely way, and in understanding Medicaid reimbursement options that will enable them to account for the cost of overtime and travel time during the workday that are likely compensable as the result of the DOL home care final rule.
CMS stands ready to help by providing "technical assistance to states seeking to adjust Medicaid reimbursement and other program policies to appropriately support FLSA compliance in home and community based LTSS. Additionally, DOL is continuing to provide extensive, individualized technical assistance." The focus of the bulletin is on home-care services that are use "self-directed service options" but the bulletin also notes "that FLSA implications also exist for services furnished through agency-delivered models."
Here are two recent appellate cases that offer views on issues of "accountability" by surrogate-decision makers.
In the case of In re Guardianship of Mueller (Nebraska Court of Appeals, December 8, 2015), an issue was whether the 94-year-old matriarch of the family, who "suffered from moderate to severe Alzheimer's disease and dementia and resided in a skilled nursing facility," needed a "guardian." On the one hand, her widowed daughter-in-law held "powers of attorney" for both health care and asset management, and, as a "minority shareholder" and resident at Mue-Cow Farms, she argued she was capable of making all necessary decisions for her mother-in-law. She took the position that appointment of another family member as a guardian was unnecessary and further, that allowing that person to sell Mue-Cow Farms would fail to preserve her mother-in-law's estate plan in which she had expressly devised the farm property, after her death, to the daughter-in-law.
The court, however, credited the testimony of a guardian-ad-litem (GAL), who expressed concern over the history of finances during the time that the daughter-in-law and the mother-in-law lived together on the farm, and further, expressing concerns over the daughter-in-law's plans to return her mother-in-law to the farm, even after a fall that had caused a broken hip and inability to climb stairs. Ultimately, the Court of Appeals affirmed the lower court's appointment of the biological daughter as the guardian and conservator, with full powers, as better able to serve the best interest of their elder.
Despite rejection of the POA as evidence of the mother's preference for a guardian, the court concluded that it was "error for the county court to authorize [the daughter/guardian] to sell the Mue-Cow property.... There was ample property in [the mother's] estate that could have been sold to adequately fund [her] care for a number of years without invading specifically devised property."
In an Indiana Court of Appeals case decided January 12, 2016, the issue was whether one son had standing to request and receive an accounting by his brother, who, as agent under a POA, was handling his mother's finances under a Power of Attorney. In 2012, Indiana had broadened the statutory authority for those who could request such an accounting, but the lower court had denied application of that accounting to POAs created prior to the effective date of the statute. The appellate court reversed:
The 2012 amendment did confer a substantive right to the children of a principal, the right to request and receive an accounting from the attorney in fact. Such right does apply prospectively in that the child of a principal only has the statutory right to request an accounting on or after July 1, 2012, but not prior to that date. The effective date of the powers of attorney are not relevant to who may make a request and receive an accounting, as only the class of persons who may request and receive an accounting, and therefore have a right to an accounting, has changed as a result of the statutory amendments to Indiana Code section 30-5-6-4. Therefore, that is the right that is subject to prospective application, not the date the powers of attorney were created
These cases demonstrate that courts have key roles in mandating accountability for surrogate decision-makers, whether under guardianships or powers of attorney.
January 28, 2016 in Advance Directives/End-of-Life, Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, January 26, 2016
Mother Jones, in the January/February 2016 issue, ran a story, My Right to Die: Assisted Suicide, My Family, and Me by Kevin Drum. This story starts with a personalized account of an individual who was terminally ill but didn't have the option of physician-aided dying. The story provides an in-depth look at the laws of physician-aided dying and the arguments, both for and against. The article then becomes even more personal when the author reveals his diagnosis of cancer for which there is no cure. He reviews his options for the future and remarks that the California law on physician-aided dying now provides an option he didn't have until the law was signed.
The author speculates: is "assisted suicide is the next big civil rights battle? The fact that four states have approved assisted suicide in just the past seven years suggests momentum may finally be reaching critical mass. What's more, if Gallup's polling is to be believed, the word "suicide" has finally lost its shock value. Still, legislation continues to fail more often than it passes, even in blue states like Massachusetts and Connecticut. Right now, it's just too early to tell." The article can serve as a good foundation for a classroom discussion.
Wednesday, January 20, 2016
Are you teaching an elder law this semester? If so, and your students are interested in sample papers to help them think about approach, scope, organization and how to provide support for their thesis statements, I've found this batch of articles helpful, even though they are now almost 10 years "old."
The nine short articles by law students (including two former students from my own law school) were published in a student journal following a competition sponsored by the National Academy of Elder Law Attorney (NAELA) and are nicely introduced by my Blogging collaborator, Becky Morgan. They demonstrate an array of topics and writing styles, and thus are useful to discuss in a writing and research class. I'm sorry that the NAELA competition is no longer available to students, as was a very nice way for students to get further mileage from their classroom research on elder law topics, and helped encourage them to revise and polish drafts!
January 20, 2016 in Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Health Care/Long Term Care, Housing, International, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, January 7, 2016
As I reported frequently in 2015, in several jurisdictions around the U.S., family members are organizing to challenge abusive guardianships or conservatorships and to seek better accountability from court systems. Here are interesting video resources that examine issues, and which may provide useful opportunities for classroom discussion of this emerging movement.
See: Conservatorship: Legalized Elder Abuse (offering a perspective from California, by the Coalition for Elder and Dependent Adult Rights)
See also: Guardianships Under Fire (a 30 minute Contact 13 special, aired by KTNV on December 28, 2015, from Las Vegas, Nevada).
Wednesday, January 6, 2016
When researching laws that purport to serve the interests of a target population, such as the elderly, I look to see whether there is an effective enforcement mechanism attached to the law. Without enforcement, the laws may serve merely as "scarecrows" to deter bad guys (who presumably are reading the laws… right?) or, perhaps, as a means by which legislators can proudly wear their "white hats," to show they are the good guys. One possible example could be Colorado's civil penalties for violation of the state's consumer protection laws where the victim is "elderly." C.R.S.A. Section 6-1-112 provides that:
"Any person who violates or causes another to violate any provision of this article [on consumer protections], where such violation was committed against an elderly person, shall forfeit and pay to the general fund of the state a civil penalty of not more than ten thousand dollars for each such violation. For purposes of this paragraph (c), a violation of any provision of this article shall constitute a separate violation with respect to each elderly person involved."
In a recent pro se Colorado case, Donna v. Countrywide Mortgage, the federal district court dismissed all counts of the complaint filed by the borrower, including the count alleging a violation of “Colorado elder law,” concluding that such a private claim must fail because only the attorney general and district attorneys are authorized to seek civil penalties under that law.
Of course, there could be other sources of effective, private rights of action for elder abuse in Colorado law.
Thursday, December 31, 2015
The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions:
Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....
To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.
The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.
In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary. Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:
Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.
The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.
Certainly I understand industry hostility to more regulations. At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting. A "carrot" rather than a "stick" to encourage reporting.
Our thanks to University of Illinois Professor Dick Kaplan for sharing this article.
Thursday, December 17, 2015
Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period. The Ops Memo #15-11--01, issued November 16, 2015, provides in part:
Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy. If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services.
Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed. Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.
It will be interesting to see "what happens next" in the world of Medicaid planning. My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Thursday, December 10, 2015
While researching potential fact patterns to use in my Wills, Trusts and Estate exam (which the students have now taken, although I remain in the Valley of Doom, for those grading essay exams), I came across a recent American Law Institute-CLE course with a very useful outline of "hot" topics in estate, trust and conservator litigation, prepared by Los Angeles attorneys Terrence Franklin and Robert Sacks. Also available on Westlaw as SW037 ALI-CLE 923, from June 2015, their list of hot topics includes:
- Legal Standards for Lack of Mental Capacity: contrasting the standards used for assessment of capacity to make wills and revocable trusts, versus more immediate lifetime gifts, and pointing to the Commentary to Uniform Trust Code Section 601 that observes that "Given [the] primary use of the revocable trust as a device for disposing of property at death, the capacity standard for will rather than that for lifetime gifts should apply."
- Legal Standards regarding Undue Influence: noting that "will and trust contests rarely rely on either a lack of capacity or undue influence claim alone. Usually, these claims are filed together, on the theory that even if the testator had the minimum level of capacity necessary to execute a valid will, her capacity was so diminished that she was more susceptible to the undue influence alleged. And California cases for decades have shown the tough burden a contestant has in contests on grounds of lack of capacity and undue influence."
- Pre-Death Contests: discussing standards used for decision-making by appointed guardians or conservators, including "substituted judgment," as well as states that have adopted statutory procedures that "expressly allow for pre-death determination of the validity of a will or trust," including Arkansas, Alaska, North Dakota and Ohio. See e.g., Ohio Rev. Code Ann. Section 2107.081 to 085.
- Intentional Interference with Expected Inheritance: summarizing the influential 2012 case of Beckwith v. Dahl, recognizing the tort of IIEI in California.
In the outline linked above, the authors also addressed practical estate planning topics, such as the importance of asking "why" when crafting dispositive provisions in estate documents, whether to videotape execution of testamentary documents, and whether to use "no contest" clauses.
December 10, 2015 in Cognitive Impairment, Consumer Information, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, December 9, 2015
Here's a summary of interesting, key findings from the complicated case of Moylan v. Citizens Sec. Bank, an "elder abuse" and wrongful termination claim with a long litigation history in Guam:
- Bank Comptroller Moylan realizes his grandparents have certificate of deposit accounts in his bank, with assets totaling more than $1 million.
- He notes that when the accounts rollover, they are no longer in the names of his grandparents, but rather solely in the names of two individuals identified as "caretakers" for the grandparents.
- Moylan proceeds to "investigate further" and concludes that multiple transactions on the accounts were suspicious, given his "personal knowledge of his Grandparents' advanced age and deteriorating mental condition."
- Moylan discusses his findings with his brother, an attorney, thus revealing bank account information without getting the permission of his Grandparents or the "caretakers" who were listed on the accounts.
- The brother advises that the findings may constitute "elder abuse" and thus trigger a mandatory duty to report the activity to Adult Protective Services.
- Moylan, fearing he may lose his bank job, encourages his father to make the report -- thus again sharing banking information without the consent of the listed account holders, the Grandparents and their caretakers.
Eventually, a guardians is appointed for the grandparents, the bank becomes a subject of the guardian's complaint about handling of the grandparents' accounts, the caretakers (one of whom is a family member) object to Moylan's "misuse" of his access to account information as a bank employee -- and, lo and behold, Moylan is fired in 2007. Moylan challenged his termination as wrongful.
In 2015, after more than 7 years of litigation in the courts below, the Supreme Court of Guam overturned summary judgment in favor of the bank on Moylan's wrongful termination claim. That's the good news for Moylan, as the Court recognizes a public policy exception to the "at will" nature of his employment contract:
Because the object and policy of the [Adult Protective Services Act] is to protect the elderly and disabled adults, the reporting requirements of 10 GCA §21003(a) should be construed liberally in favor of promoting the reporting of suspected abuse. This approach is consistent with the fact that the legislature chose to include the term “immediately” instead of a specified reporting deadline. Therefore, we hold that in the limited context of the facts of this case, Scott's oral reporting within seven days after the discovery of alleged abuse qualifies as sufficiently immediate....
Termination motivated by Scott's mandatory reporting would jeopardize the public policy to protect elderly and disabled adults from abuse because it would discourage future reporting. Scott presented evidence that at least one Bank executive knew that Scott had caused a report to APS before Scott was terminated.
Under Guam law, mandatory reporting of suspected elder abuse applies to "banking and financial institution personnel." 10 GCA §21003(b).
The bad news is the reversal sends the case back to the trial court for "further proceedings." The full opinion by the Supreme Court of Guam, issued November 20, 2015, linked above, is well worth reading, as it demonstrates both weaknesses and strengths of statutory attempts to mandate that banks report suspected elder abuse.