Wednesday, December 10, 2014
Earlier this year, Kim Dayton reported in our Blog (here) about the new CARE Act, enacted in Oklahoma as a means to provide better transition from facility-based care to home care for individuals needing support. The CARE Act is a nation-wide project sponsored by AARP and thus I was excited to be invited to participate in an AARP Pennsylvania Family Caregiver Summit, as part of the discussion about introduction and passage of a CARE Act in my state.
The Summit was held yesterday with administrative agency heads, legislators and their staff invited to attend. The turnout was probably a bit affected by the weather reports for the day. (What happened to the predicted Nor'easter, anyway? Not that I'm complaining about winter weather that proves to be milder than predicted!) I found the event very interesting. As so often happens, I ended up being more of a student than a teacher, even while serving as a panelist.
It was quickly clear that virtually everyone in the room had experience with or personal awareness of the challenges of serving as a family caregiver under stress. The room was practically vibrating with stories about how tough it can be to know what to do when you confront the reality that a parent or other aging family member needs significant support. The keynote speaker, Cate Barron, a vice president of the PennLive and Patriot-News media group and by her own admission a take-charge kind of gal, spoke with great candor and humor about the process of realizing that a "diagnosis" of what is wrong did not necessarily provide answers to her mother's need for assistance. We are so pre-programmed to believe that if we can find the right diagnosis of the problem, there must be a "solution" worth pursuing.
The opening presentation by Glenn Fewkes from the AARP National office provided the latest statistics and graphics about aging in the U.S. What I found especially interesting were his graphics about Long-Term Services and Supports (LTSS) for individuals with caregiving needs. It turns out Pennsylvania ranks near the bottom (42nd, according to the most recent statistics) on a national scorecard. evaluating LTSS for affordability and access. That means the state with the fourth "oldest" population has some real challenges ahead.
That is where AARP's CARE Act project comes into play as a first step to improve supports for individuals needing care. As we reported earlier, CARE is an acronym for "Caregiver Advise, Record and Enable" and AARP's model has straight-forward objectives. To me, a key goal in adopting the model CARE Act is to create smoother transitions. This can be facilitated by making sure that hospitals or rehab facilities have clear information about any designated "caregiver," that they give notifice of discharge at least 4 hours in advance, and that they offer practical instruction on any medical tasks that will need to be performed in the home. For example, under the model CARE Act, the instruction shall include:
- a live demonstration of needed "after-care tasks"
- an opportunity for caregiver and patient to ask questions
- answers to the caregiver and patient questions "provided in a culturally competent manner and in accordance with the hospital's requirements to provide language access services under state and federal law."
My own research has shown that family members often cite "access to accurate information" as one of the most important first needs for families responding to caregiving crises. The CARE Act is clearly intended to respond to a critical first window of need -- hospital discharge -- by requiring facilities to give useful information and relevant instruction.
During the Family Caregiver Summit, there were a lot of good questions about the CARE Act, and it was great to have Pennsylvania State Representative Tim Hennessey on the panel. In his role as majority chair of the House Aging and Older Adult Services Committee, it is likely he will be able to provide early analysis and support for the CARE Act in Pennsylvania.
As part of my own preparation for the Summit, I took a closer look at Oklahoma's result with the CARE Act. Title 63 Okla. St. Ann. Sections 3113- 3117 (the statutory provisions created by the April 2014 passage of Senate Bill 1536) became effective on November 1, 2014. The law requires that hospitals "provide each patient or patient's legal guardian with an opportunity to designate one lay caregiver" following admission, and to record the designated caregiver and the caregiver's contact information in the patient's medical record. Such a choice then triggers the hospital to "request the written consent" of the patient or guardian to release medical information to the patient." Only if the patient both designates a lay caregiver AND gives "written" consent is the hospital then obligated to do anything further with respect to discharge planning with the caregiver.
But what happens in Oklahoma when the written consent to share information with the designated caregiver is given?
Friday, December 5, 2014
I've written often in our Blog, including here and here, about our growing awareness and national concern about the issue of financial exploitation of older persons. In brainstorming a bit with another attorney about a thorny case -- and trying to decide where a parent/child relationship went wrong -- I was reminded of the work of Professor Karen Hooker, PhD at Oregon State University's School of Social and Behavioral Sciences. A major focus of Professor Hooker's work is the influence of "personality" in aging across the lifespan. She has examined spousal caregivers for persons with dementia, looking to see how the individual's view of self and the relationship affects "success," including successful caregiving. Another part of her work has examined closely the issue of "ambivalence" in family relationships.
For example, in Dr. Hooker's research, her team used qualitative study methods to examine older parent/adult child relationships. One of the major themes emerging when parents (each aged 67+) talked about their children was awareness that their children were "busy," and thus there were often ambivalent feelings of need and dissatisfaction about the parent's interactions with their children. The study revealed feelings both of resentment and pride about their busiest children.
That has led me to think that "ambivalence" may also be a component of voluntary "principal and agent" relationships, where the adult children are asked by the parent to serve as an agent under a power of attorney, for example. But as the adult child exercises more control over financial matters, might that parent also begin to have second thoughts, thoughts that are not acted on until "too late." The children believe they had authority to "pay themselves" for their roles in handling matters for their aging parent; the parent initially agrees, or at least does not object, and only later, after the money is gone, asserts some "agreement" about the financial matters, arguing there was an "understanding," even if never express at the outset? There is room for more research here, yes?
Monday, November 17, 2014
On November 17, 2014, following more than a year of study and consultation, the Pennsylvania Supreme Court's Elder Law Task Force issued a comprehensive (284 pages!) report and recommendations addressing a host of core concerns, including how better to assure that older Pennsylvanians' rights and needs are recognized under the law. With Justice Debra Todd as the chair, the Task Force organized into three committees, focusing on Guardianships and Legal Counsel, Guardianship Monitoring, and Elder Abuse and Neglect. The Task Force included more than 40 individuals from across the state, reflecting backgrounds in private legal practice, legal service organizations, government service agencies, social care organizations, criminal law, banking, and the courts.
From the 130 recommendations, Justice Todd highlighted several "bold" provisions at a press conference including:
- Recommending the state's so-called "Slayer" law be amended to prevent an individual who has been convicted of abusing or neglecting an elder from inheriting from the elder;
- Recommending changes to court rules to mandate training for all guardians, including, but not limited to, family members serving as guardians;
- Recommending adoption of mandatory reporting by financial institutions who witness suspected elder abuse, including financial abuse.
The full report is available on the Pennsylvania Supreme Court website here. As a consequence of the Task Force study, the Supreme Court has approved the creation of an ongoing "Office of Elder Justice in the Courts" to support implementation of recommendations, and has created an "Advisory Council on Elder Justice to the Courts" to be chaired by Pennsylvania Superior Court Judge Paula Francisco Ott.
Thursday, October 2, 2014
Afghanistan is the worst country to live in as an older person, an annual index on the wellbeing of the elderly showed on Wednesday. The Asian country was ranked bottom for the second consecutive year in HelpAge International's Global AgeWatch Index, its health situation in particular the poorest in the world. Norway topped the index - up one place from last year - followed by Sweden, Switzerland, Canada and Germany, all of which remained in the top 10. Apart from Japan - ranked ninth - the 10 best performers were again in western Europe, North America and Australasia. The report, which focused on pensions and warned that half the world’s population faces a bleak future without one, comes at a time when life expectancy continues to rise. Toby Porter, chief executive of HelpAge International, said governments worldwide need to implement specific policies to respond to "this unequovical demographic shift". "Only if they act now will they have a chance to meet the needs of their citizens and keep their economies going," Porter told the Thomson Reuters Foundation.
Wednesday, October 1, 2014
A few days ago I blogged about an article in The Atlantic explaining one person's thinking of 75 being his optimal "old age". In that same issue of The Atlantic is another article--about longevity and 100 year olds--what it will mean for society as more of us reach that age. What Happens When We All Live to 100? was published on September 17, 2014.
The article starts with a history of sorts of life expectancies from human origins and notes that
Viewed globally, the lengthening of life spans seems independent of any single, specific event. It didn’t accelerate much as antibiotics and vaccines became common. Nor did it retreat much during wars or disease outbreaks. A graph of global life expectancy over time looks like an escalator rising smoothly. The trend holds, in most years, in individual nations rich and poor; the whole world is riding the escalator.
Projections of ever-longer life spans assume no incredible medical discoveries—rather, that the escalator ride simply continues. If anti-aging drugs or genetic therapies are found, the climb could accelerate. Centenarians may become the norm, rather than rarities who generate a headline in the local newspaper.
The article then moves to a discussion of those institutions intentionally working on increasing life spans, the Buck Institute, the U of Michigan, the U of Texas, UC-San Francisco, and the Mayo Clinic for example. Long-term readers of this blog may also remember a post about CALICO (Google's "spin-off called the California Life Company (known as Calico) to specialize in longevity research."). The article has a fascinating section about the research being done, including some interesting consideration of other life forms that excel in longevity (worm genes, anyone?).
I particular enjoyed reading the quote of one of the leaders in the field in describing the nascent nature of the research. "'[M]edically, we do not know what ‘age’ is. The sole means to determine age is by asking for date of birth. That’s what a basic level this research still is at.'” There seems to be some debate amongst the experts about whether life expectancy will continue to rise at the steady escalator-smooth rate as in years past. The article also mentions some of the theories advanced over time on increasingly longevity: vitamins, low calorie diets, education, exercise, etc.
One section of the article bears significant possibilities for class discussion, the political implications of an older society.
Society is dominated by the old—old political leaders, old judges. With each passing year, as longevity increases, the intergenerational imbalance worsens. The old demand benefits for which the young must pay, while people in their 20s become disenchanted, feeling that the deck is stacked against them. National debt increases at an alarming rate. Innovation and fresh thinking disappear as energies are devoted to defending current pie-slicing arrangements.
The author reveals this is a description of what is actually occurring in Japan. Consider as the author does, what increased longevity may also do to the judicial branch--especially the Supreme Court with lifetime appointments.
This article may be viewed as a bit of a wake-up alarm, although I suspect many of the folks in the US will just hit the snooze button
People’s retirement savings simply must increase, though this means financial self-discipline, which Americans are not known for. Beyond that, most individuals will likely need to take a new view of what retirement should be: not a toggle switch—no work at all, after years of full-time labor—but a continuum on which a person gradually downshifts to half-time, then to working now and then. Let’s call it the “retirement track” rather than retirement: a phase of continuing to earn and save as full-time work winds down.
Widespread adoption of a retirement track would necessitate changes in public policy and in employers’ attitudes. Banks don’t think in terms of smallish loans to help a person in the second half of life start a home-based business, but such lending might be vital to a graying population. Many employers are required to continue offering health insurance to those who stay on the job past 65, even though they are eligible for Medicare. Employers’ premiums for these workers are much higher than for young workers, which means employers may have a logical reason to want anyone past 65 off the payroll. Ending this requirement would make seniors more attractive to employers.
Back to the reasons for increasing longevity. One in the list above, education, seems to have a solid correlation and maybe not as obvious as other reasons that come to mind (vaccines, antibiotics, improved health care, public services, etc.). The author considers the role of education in longevity and examining budget cuts by states, suggests
Many of the social developments that improve longevity—better sanitation, less pollution, improved emergency rooms—are provided to all on an egalitarian basis. But today’s public high schools are dreadful in many inner-city areas, and broadly across states ... Legislatures are cutting support for public universities, while the cost of higher education rises faster than inflation. These issues are discussed in terms of fairness; perhaps health should be added as a concern in the debate. If education is the trump card of longevity, the top quintile may pull away from the rest
The last section of the article hypothesizes on the impact of an aging society if the escalator continues its ascent, achieving perhaps a "grey utopia" of sorts. The article is well worth reading, but it makes me think about how society values, or devalues, aging. Is getting old a challenge or disease to be conquered? For example, the author writes, "[i]f the passage of time itself turns out to be the challenge, interdisciplinary study of aging might overtake the disease-by-disease approach. As recently as a generation ago, it would have seemed totally crazy to suppose that aging could be “cured.” Now curing aging seems, well, only somewhat crazy." Read this article and have your students read it, too.
Tuesday, September 30, 2014
Kudos again to my friend and colleague, Professor Mark Bauer (current chair of the AALS Aging & Law section, btw) for sending me this article, The Great Senior Sell-Off Could Cause the Next Housing Crisis. The article appeared in The Atlantic's CityLab, and although the article was published in 2013, I think it is still important to read (if you didn't when it was first published) because it predicts the busting of another housing "bubble" starting in 2020, just 6 years from now.
The article opens with looking at the various names of animals being swallowed by the python (that is, the Boomers and the American population). (As an aside, the article lists a number of animals--I'd only heard of the pig, but now I know we Boomers might also be compared to a bunny (cute) or "a really big rat" (ugh)). But I digress.
The focus of the article is on what will happen when the Boomers reach a certain age where they decide to sell their homes...and hope there are buyers galore for them. A researcher quoted in the article indicates that in certain larger metro areas, there should be buyers, but in less populous areas, not so much. He describes what he calls "the “great senior sell-off” .... sometime later this decade ... [that] he predicts that it could cause our next real housing crisis."
Changing demographics will also affect the housing market and demand will not be in sync with supply as housing preferences change with age and demographics. There is something of a bleak housing future ahead for many elders, according to the expert, who predicts "there will be two classes of seniors in America: those “aging in place” voluntarily, and those “aging in place” involuntarily because they can’t sell their homes." His concerns about aging in place are best summarized by how a person's abilities change once s/he gets to an advanced age and becomes unable to do basic upkeep or maintenance yet the housing market will tumble, leaving some only the choice of abandoning their homes.
Thursday, September 4, 2014
George Washington Law Professor Naomi Cahn alerted us to the Washington Post coverage on new research analyzing causation factors to explain why 2/3 of all persons with Alzheimer's Disease are women. Lots of opportunities here for important classroom discussions:
"It has long been known that more women than men get the deadly neurodegenerative disease, and an emerging body of research is challenging the common wisdom as to why. Although the question is by no means settled, recent findings suggest that biological, genetic and even cultural influences may play heavy roles.....
Because advancing age is considered the biggest risk factor for the disease, researchers largely have attributed that disparity to women’s longer life spans. The average life expectancy for women is 81 years, compared with 76 for men. Yet 'even after taking age into account, women are more at risk,' said Richard Lipton, a physician who heads the Einstein Aging Study at Albert Einstein College of Medicine in New York.
The area of inquiry has been growing in part because of a push by female Alzheimer’s researchers, who have formed a group to advocate for a larger leadership role in the field and more gender-specific research. 'Scientific workforce diversity is very important because it’s much more likely to shape the research agenda,' said Hannah Valantine, the chief officer for scientific workforce diversity at the National Institutes of Health and a professor at Stanford University’s medical school.
Running counter to the longevity argument, Lipton’s research suggests that women who are 70 to 79 years old are twice as likely as men the same age to develop Alzheimer’s or other forms of dementia. After 80, the risk is identical and remains similar throughout the rest of life, Lipton said."
For more on emerging issues and indictors, see "Why Do More Women Get Alzheimer's?" by Frederick Kunkle. Thanks, Naomi!
Wednesday, September 3, 2014
The Centre for Ageing Research and Development in Ireland (CARDI) has created a database of statistical information for researchers interested in ageing and older people in Ireland, north and south. AgeStats is a very user-friendly website -- and perhaps also serves as a model for survey collections in other countries?
Wednesday, August 27, 2014
Another video suggestion for the classroom from Barry Kozak at John Marshall Law School, this time demonstrating the history of modern human population growth, and highlighting income and longevity in the U.S. and China. I first watched this interesting video at the prompting of Professor Issi Doron, Haifa University. The energetic speaker, Hans Rosling, is a professor of international health at Karolinska Institute in Sweden, and also the founder of Gapminder Foundation that creates the dynamic graphs.
Tuesday, August 26, 2014
Barry Kozak, Director of Elder Law Programs at John Marshall Law School, recently shared with us a copy of a syllabus for his new course on elder law. He's making a conscious choice to organize his class sessions to highlight core concepts addressed by the Chicago Declaration on the Rights of Older Persons. He's assembled a list of great short videos for use in class, and he's allowed us to pass on his suggestions to readers of our Blog. Thanks, Barry!
Here's a great starting point, a four minute video from HelpAge USA and Pfizer Inc. that introduces the concept of global aging as an important driver of economic growth. Instead of wringing our hands over the aging tsunami, these speakers urge this phenomenon as a reason to think creatively.
Monday, August 25, 2014
As explained earlier today in our Elder Law Prof Blog post about the most recent article by Professors Bisom-Rapp and Sargeant, lifetime discrimination in wages and opportunities has long-range implications for working women. Along this same line, the National Senior Citizens Law Center and Half in Ten (The Campaign to Cut Poverty in Half in Ten Years) are working together to tackle the question of senior poverty and have created an excellent two-page "visual" profile of poverty and opportunity statistics that demonstrate graphically how poverty presently impacts seniors. For example, they provide easy-to-understand graphics on how poverty among seniors disproportionately affects women, especially women of color. The PDF document should be very useful in classrooms.
Tuesday, July 1, 2014
While rates of smoking and excessive drinking have declined among older Americans, prevalence of chronic disease has risen, and many older Americans are unprepared to afford the costs of long-term care in a nursing home, according to a report from the U.S. Census Bureau commissioned by the National Institutes of Health.The report highlights those trends and others among America’s older population, now over 40 million and expected to more than double by mid-century, growing to 83.7 million people and one-fifth of the U.S. population by 2050. Population trends and other national data about people 65 and older are presented in the report, 65+ in the United States: 2010. It documents aging as quite varied in terms of how long people live, how well they age, their financial and educational status, their medical and long-term care and housing costs, where they live and with whom, and other factors important for aging and health.Funded by the National Institute on Aging (NIA), part of NIH, the report draws heavily on data from the 2010 Census and other nationally representative surveys, such as the Current Population Survey, the American Community Survey and the National Health Interview Survey. In addition, data from NIA-funded research was included in the report.“The National Institute on Aging is pleased to support this 65+ in the United Statesreport,” said Richard Suzman, director of the Division of Behavioral and Social Research at NIA. “This report series uniquely combines Census Bureau and other federal statistics with findings from NIA-supported studies on aging. The collaboration with Census has been of great value in developing social, economic and demographic statistics on our aging population with this edition highlighting an approaching crisis in caregiving — since the baby boomers had fewer children compared to their parents.”A key aspect of the report is the effect that the aging of the baby boom generation—those born between 1946 and 1964—will have on the U.S. population and on society in general. Baby boomers began to reach age 65 in 2011; between 2010 and 2020, the older generation is projected to grow more rapidly than in any other decade since 1900.The report points out some critical health-related issues:
- Rates of smoking and excessive alcohol consumption have declined among those 65 and older, but the percentage of overweight and obese people has increased. Between 2003-2006, 72 percent of older men and 67 percent of older women were overweight or obese. Obesity is associated in increased rates of diabetes, arthritis, and impaired mobility, and in some cases with higher death rates.
- Research based on NIA’s Health and Retirement Study suggests that the prevalence of chronic diseases, such as high blood pressure, heart disease, chronic lung disease, and diabetes, increased among older people between 1998 and 2008. For example, in 2008, 41 percent of the older population had three or more chronic conditions, 51 percent had one or two, and only 8 percent had no chronic conditions.
- The cost of long-term care varies by care setting. The average cost of a private room in a nursing home was $229 per day or $83,585 per year in 2010. Less than one-fifth of older people have the personal financial resources to live in a nursing home for more than three years and almost two-thirds cannot afford even one year. Medicare provides coverage in a skilled nursing facility to older and disabled patients for short time periods following hospitalization. Medicaid covers long-term care in certified facilities for qualifying low-income seniors. In 2006, Medicaid paid for 43 percent of long-term care.“Most of the long-term care provided to older people today comes from unpaid family members and friends,” noted Suzman. “Baby boomers had far fewer children than their parents. Combined with higher divorce rates and disrupted family structures, this will result in fewer family members to provide long-term care in the future. This will become more serious as people live longer with conditions such as cancer, heart disease and Alzheimer’s.”Other areas covered in the report include economic characteristics, geographic distribution, social and other characteristics.
Tuesday, June 17, 2014
Via the Times of India:
According to a recent study conducted by HelpAge India, half the elderly population in the country faces abuse of various kinds. This was the tenth year that the study was undertaken by the NGO, whose results were released days before the World Elderly Abuse Day observed on Sunday. Conducted in six tier I and six tier II cities of the country, including Nagpur, the survey aims to bring forth the reasons and incidences of abuse faced by the senior citizens. "A decade ago, we saw that even those elderly people who are living with their families are very lonely and sad. This was mainly because of the changes in the family unit concurring with the many social changes that were happening in the country. We started the study on elderly abuse 10 years ago but the results are being made public only since last three years," said Sunil Thakur, a senior manager in the NGO. He added that highlighting this abuse in numbers may result in some concrete action for the protection of the elderly.
Sunday, June 1, 2014
As Becky Morgan and I reported earlier, the Law & Society Annual Meeting held in Minneapolis from May 29 through June 1, attracted terrifically interesting speakers, both from within and outside the United States. During the Critical Research Network sessions (CRN) on Aging, Law & Society, I was particularly struck by listening to a trio of speakers from Israel, including Israel (Issi) Doron from the University of Haifa, Michael (Mickey) Schindler from Bar-Ilan University, and Benny Spanier, from Haifa University.
Issi provided a historical perspective on aging as an international human rights issue, tracking the development of action plans under the auspices of the United Nations from 1982 in Vienna to 2002 in Madrid. The 2002 outcome document, the Madrid International Plan of Action on Ageing (MIPAA), expresses the commitment of 160 participating governments, including the United States, to integrate rights and needs of older persons into national, as well as international, economic and social development policies. However, as Issi pointed out, this is a "soft" document, non-binding in nature.
Thus, the next important step is a Convention or Treaty on aging human rights, a subject of on-going discussions in international circles. Issi saw a hopeful sign in May 2014 appointment of a new Independent Expert on Human Rights of Older Persons, Rosa Kornfeld-Matte, by the U.N. Human Rights Council. Kornfeld-Matte served as the National Director of the Chilean National Service of Ageing and has a long career as an academic, working for more than 20 years at the Pontificia Unversidad Catolica de Chile, where she founded a program on older people. The role for Ms. Kornfeld-Matte, who has a 3 year appointment, is that of fact-finder, to provide an independent assessment of the critical issues for aging human rights as the basis for international law.
Micky's presentation focused on the effect of Israel's use -- or relative nonuse -- of legislation adopted in 1966, the "Safety of Protected Persons Law." He pointed to the potential role of social workers in safeguarding the rights of older adults, and suggesting that the flexibility available to the court to fashion court-enforced solutions to care and safety issues might be a better option than what is available under the more-often used guardianship law.
Benny examined some 226 decisions involving claims by older persons before the European Court of Human Rights, drawn from 2000 to 2010, concluding that although the European Convention on Human Rights does not specifically recognize older adults as having protected right, the cases examined demonstrate that individuals making age-based claims for protection are seeking -- and in some instances finding -- relief before this court. Benny's analysis of these cases, in a paper co-authored with Issi and Faina Milman-Sivan, also from the University of Haifa, was published in late 2013 in the Journal of Cross Cultural Gerontology.
Following the first day of presentations and workshops, several of the speakers met for dinner at a local Minneapolis restaurant (Spoonriver, overlooking the Mississippi River -- great spot!), and a number of us were discussing a growing problem for international research. Many of the key journals and periodical publications for aging research are "owned" by publishers who prohibit authors from placing final versions of their papers on open-access research platforms such as SSRN. The prices charged for individual researchers' access to electronic copies of an article are often prohibitive for academic researchers, who often need and wish to cite to multiple sources. We discussed options, such as whether authors should seek to negotiate for unrestricted public access after an initial period of fee-paid access. Others' thoughts on this issue?
Saturday, May 24, 2014
Monday, April 14, 2014
New Report Finds That Spouses Who Are Caregivers Are More Likely Than Other Caregivers to Perform Demanding Medical/Nursing Tasks
The United Hospital Fund and AARP Public Policy Institute has issued a report today showing that spouses who are caregivers not only perform many of the tasks that health care professionals do—a range of medical/nursing tasks including medication management, wound care, using meters and monitors, and more—but they are significantly more likely to do so than other family caregivers, who are mostly adult children. Nearly two-thirds of spouses who are family caregivers performed such tasks (65 percent), compared to 42 percent of nonspousal caregivers.
Saturday, April 12, 2014
I think it is safe to say that in more than twenty years of working in law and aging, the last twelve months have been the "busiest" I can remember on the topic of financial abuse of older persons.
As examples, in just the last six months, in addition to international projects on safeguarding policies, I have been invited to assist a team of attorneys on a series of well-attended CLE presentations on "powers of attorney," testify at the invitation of the Pennsylvania House of Representatives on the topic of financial abuse and exploitation, and serve on an Abuse and Neglect Committee for the Pennsylvania Supreme Court's Elder Law Task Force.
Certainly the concerns about financial abuse of older adults are not new. However, a steady drumbeat of local news reports about financial abuse, plus the demographics of aging populations, has drawn increased attention of state legislators, courts, and practitioners. In many jurisdictions, the focus is no longer just on "whether" but "how" to address the problem of exploitation of older people. In addition, the high profile cases involving philanthropist Brooke Astor and actor Mickey Rooney, reportedly at the hands of family members and others, have made it clear that no level of society is immune from the potential for abuse.
Along this line, in Pennsylvania a series of events have helped to shape the current debate on abuse of older persons or other "vulnerable" adults, and thus has generated proposed legislation. Perhaps Pennsylvania's history will resonate with those addressing similar concerns in other jurisdictions:
- In 2010, the Pennsylvania Supreme Court addressed the question of whether a state agency that was responsible for administering a specific retirement fund was entitled to good faith immunity under state law when taking action in reliance on a purported Power of Attorney (POA) presented by the spouse as agent of his employee/wife. In Vine v. Commonwealth of Pennsylvania, a majority of the Court concluded that where the employee's "X" on the POA was improperly obtained by her husband while she was incapacitated after a life threatening car accident, the POA was invalid -- in other words "void" -- and therefore the "immunity" conferred by the state's POA law was not available to the agency. (There were strong dissents to the majority's ruling,). The decision had implications for POAs generally, and certainly POAs presented by family members or others to banks on behalf of older people who needed or desired agents to handle financial matters. In Pennsylvania, financial institutions began questioning POAs, seeking reassurances that the document in question was valid. The commercial viability of POAs was thus at risk. This became known as the "Vine" problem in Pennsylvania.
- Attorneys representing various stakeholders, including families, financial institutions and district attorneys, began to weigh-in with proposed "fixes" for the Vine problem, while sometimes also raising other concerns related to financial abuse of older or vulnerable adults.
- The Uniform Law Commission, after years of hard work by academics, judges, attorneys and other interested parties nationwide, issued a proposed "Uniform Power of Attorney Act" (UPOAA) in 2006. Central to the proposed legislation were safeguards intended to better protect the incapacitated principal, as well as address concerns by agents and third parties. By 2014, fourteen states have enacted revisions of POA laws, drawing upon the Uniform Act for guidance. As with other uniform law movements, the Commission's work on UPOAA recognized the need for accepted standards for instruments used in national commerce, instruments that frequently cross state borders.
- In Pennsylvania, the UPOAA has influenced two bills, House Bill 1429 (introduced by Representative Keller) and Senate Bill 620 (introduced by Senator Greenleaf). Each bill passed in their respective houses. (This single sentence truncates several years of history about the negotiations, all set against the background of need for a "Vine" fix.) Both bills address the concerns of banks and other third-parties who want reassurances that they may rely in good faith on POAs that appear on their face to be valid.
- Following legislative hearings that included testimony from individuals representing banks, legal service agencies, and protective service agencies, other legislative proposals emerged. These pending bills include: SB 621 (Senator Greenleaf) with significant, additional updates to POA laws, as well as other parts of the probate code; HB 2014 (Representative Hennessey) proposing significant revisions of the state's Older Adult Protective Services Act; and HB 2057 (Representative White) amending the Older Adult Protective Services Act to create a private right of action, including attorneys fees and punitive damages, for victims of exploitation against the abusers.
In Pennsylvania, which has a year-round legislature, there tend to be two windows for major action on pending legislation, including the "budget" cycle that ends on July 1 and again during autumn months. In following the various bills, it seems to me likely that HB 1429 will be the vehicle for the "Vine" fix. There is also the possibility that Senator Greenleaf's second bill, SB 621, and other tweaks will be passed, either as standalone legislation or as amendments to HB 1429 or other bills. Thus, for interested persons and stakeholders, the weeks leading up to July 1 will mean keeping a watchful eye (and alert ear) for last minute changes.
All of the stakeholders are well-intentioned and concerned about the best interests of older adults who because of frailty often have no choice but to rely on agents or others acting in a fiduciary capacity.
At the same time, as I've watched the events of the last four years in Pennsylvania come to a peak the last six months, I've observed a complicating factor. Those who are most likely to see violations of POAs, including district attorneys, protective service agencies and the courts, probably do not see the larger volume of commercial transactions that happen routinely and appropriately without the added cost of enhanced accounting or oversight. By comparison, professional advisors who routinely facilitate families in estate planning, including transactional attorneys, tend not to see the abusers. Finally, financial institutions, who probably feel caught in the middle, and who are often on the front lines of witnessing potential abuse, seek the ability to report suspected abuse without incurring liability, while also avoiding the costs of becoming "mandatory" reporters (a topic addressed in some proposed amendments of the Older Adult Protective Services Act). Thus it is challenging to balance the viewpoints of different groups in crafting effective (including cost effective) solutions.
There is also the potential that by focusing primarily on POAs, which in Pennsylvania is driven by a very real need for a "Vine" fix, we may be missing or minimizing other significant instances of abuse via joint accounts, questionably "signed" checks, or misuse of bank cards and credit cards. The amounts of money per transaction may be smaller in those instances, but depending on the victim's resources, the impact may be even more significant.
Ironically, as the population of older adults increases, state funding, including Pennsylvania funding, is under constant threat, thus weakening Protective Services, Legal Services and the courts, all entities that can help victims, and that have expertise in investigation and intervention where abuse is indicated.
Friday, April 11, 2014
It is Friday and time for a catch-up on recent law review articles. I posted last month on Memphis Professor Donna Harkness' article on filial support laws, but she is not the only one with recent publications analyzing the seemingly renewed interest in enforcement of such laws around the country and the world. Here are highlights from recent comments and articles (minus those pesky footnotes):
"The Parent Trap: Health Care & Retirement Corporation of America v. Pittas, How it Reinforced Filial Responsibility Laws and Whether Filial Responsibility Laws Can Really Make you Pay," Comment by Texas-Tech Law Student Mari Park for the Estate Planning & Community Property Law Journal (Summer 2013):
"Texas should join the other twenty-eight states that already have a filial responsibility statute. Placing the duty of support on able family members first is a centuries-old obligation that has managed to survive into the present day despite opposition. While filial responsibility may seem harsh, it is simply making families care for each other. With the number of indigent elderly quickly rising, long-term care costs are likely affecting many families. Instead of ignoring the issue and hoping the government will shoulder this burden, maybe it is time for families to step up and take responsibility."
"Filial Responsibility: Breaking the Backbone of Today's Modern Long Term Care System," Article by Elder Law Specialist Twyla Sketchley and Florida State Law Student Carter McMillan for the St. Thomas Law Review (Fall 2013):
"The costs of long term care are staggering and a solution must be found for this crisis. However, mandatory filial responsibility is not the answer. Enforcement of filial responsibility in the modern long term care system is unsustainable and ineffective. Filial responsibility has been recognized since the Great Depression as ineffective in providing for the needs of elders. Scholars have recognized that families provide care, not out of legal obligation, but personal moral obligation, and do so at great sacrifice. Enforcement of filial responsibility in today's long term care system burdens those who are the least able to shoulder the additional burden. Based on the value and the consistency of the care provided by informal caregivers, informal caregiving is the one piece of the long term care system that is working. Therefore, the solutions to the long term care financing system must encourage and support the informal caregiving system[,] not add additional, unsustainable burdens."
"Intestate Succession for Indigent Parents: A Modest Proposal for Reform," Comment by Toledo Law Student Matthew Boehringer for the University of Toledo Law Review (Fall 2013):
"Filial support statutes have already laid the groundwork and rationale behind adults supporting their dependents and should provide a convenient outlet for a government looking to reduce spending. Society will inevitably find more parents dependent on support from their children. Consequently, more of the elderly population will find that avenue of support estopped should that child die and without a means of familial support. A modest reform of intestacy laws will address this situation and smooth over inconsistencies between different applications of the same purpose. The burden on the estate should not be excessive because the decedent was already providing for the elderly parent before death. Moreover, probate courts will already know the facts of the case and, thus, are in the best position to provide an equitable treatment for all parties dependent on the decedent. This modest proposal offers little harm but much benefit for some of the weakest of society."
In addition to the above articles addressing obligations that may run from adult child to parent, an article on "Who Pays for the 'Boomerang Generation?' A Legal Perspective on Financial Support For Young Adults," by Rutgers-Camden Law Professor Sally Goldfarb for the Harvard Journal of Law and Gender, analyzes the practical obligations assumed by many single parents, often women, to support adult children who are not yet self-sustaining. Professor Goldfarb observes that a "financially struggling single mother who provides support for her adult child is at heightened risk of becoming an impoverished elderly woman." She proposes:
"Instead of urging mothers to 'just say no' to financially dependent adult children, a better approach would be to ensure that the burden of financial support for young adults is distributed more equitably.... Divorced, separated, and never-married mothers of financially dependent young adults are in a position of derivative dependency. If they cut their financial ties to their adult children, they jeopardize the children's financial security. If they don't cut those ties, they jeopardize their own. A solution that safeguards the well-being of both mothers and young adults is urgently needed. In the absence of widely available public programs to meet the needs of young adults, the most obvious solution is to divide the cost of supporting them fairly between both parents...[as she explains in greater detail]."
Don't hesitate to write and let me know if I have missed your recent article addressing filial support laws or related concepts.
Wednesday, April 9, 2014
For the 11th consecutive year, Genworth has released its national survey results for long-term care costs, including statistics for nursing home care, assisted living facility care, adult day health care, home health aide services, and homemaker services. The survey draws upon information from more than 14,800 providers in 440 regions nationwide.
Genworth's 2014 information is offered in several formats, including:
- Key Findings
- Full Report
- State-by-State Statistics (with an interactive map, including search-by-region function)
In addition, and not surprising given that Genworth is an insurance company, the website offers planning guidelines, explaining the role for long-term care insurance.
Thursday, April 3, 2014
That's a frequent paper topic proposal for students in my Elder Law course, and one that usually triggers a conversation about the potential for "ageism." I remind students it will be important to provide evidence in support of their proposals, and not simply recount anecdotes about bad older drivers.
But, in truth, there is plenty of data to identify risks associated with older driving, as suggested by Elder Law Attorney Robert Fleming on his great Blog, citing statistics from the Center for Disease Control about risks for "fatal" accidents over age 75. See "Driving, Aging and Dealing with Family Dynamics."
ElderLawGuy Jeff Marshall takes a very personal look at his own driving future on his Blog, and uses that moment of self reflection to also examine strategies for encouraging older drivers to give up the keys. Read "What to Do When Dad Shouldn't Be Driving."
This is another area of "social policy" where the laws are not uniform on how to intervene when the older driver refuses to stop driving or to make other appropriate adjustments in when and where to drive. Here is a link from the insurance industry's Claims Journal to a recent "State by State Look at Driving Rules for Older Drivers."
And, for a somewhat more theoretical approach to the topic, from University of Miami Law Professor Bruce Winick, the always thoughtful guru of the therapeutic jurisprudence movement, see "Aging, Driving and Public Health: A Therapeutic Jurisprudence Approach." Professor Winick proposes creation of community-based "safe driving centers," as a means of encouraging impaired drivers "voluntarily to cease or restrict their driving by offering inducements and alternative transportation solutions."
And of course, we have Professor Becky Morgan's preferred solution, the Jetsons' car that drives (and parks) itself. Read "New Study on Autonomous Cars."