Wednesday, September 13, 2017
Article on Note: Nursing Home Abuse of Agents: Creditor Misuse of New York's Revised Durable Power of Attorney
William P. Davies recently published an Article entitled, Note: Nursing Home Abuse of Agents: Creditor Misuse of New York's Revised Durable Power of Attorney, 79 Alb. L. Rev. 1433 (2015/2016). Provided below is an abstract of the Article:
According to the Third Restatement of Agency, “[a] written instrument may make an agent’s actual authority effective upon a principal’s loss of capacity, or confer it irrevocably regardless of such loss.” A commonly used device that confers agency, and does not terminate upon incapacity, is known as a Durable Power of Attorney (“DPOA”). While such a device can be useful to avoid government and court involvement in the event of incapacity, it can also be dangerous. Without proper safeguards, the agent under a DPOA can use the device to exploit an elderly principal. Due to the danger of abuse of the principal at the hands of the agent, state legislatures have enacted various measures to protect principals. However, as this paper sets out, some reforms that combat DPOA abuse may be contrary to the purpose of the device. One of these reforms is the Special Proceeding available to third parties pursuant to the New York General Obligations Law section 5-1510(3), which in its current form allows creditors to bypass the protections offered by New York Debtor Creditor law.
In order to understand how the special proceeding came to be in its current form, this paper will discuss the history of the DPOA on a national scale, its application in New York, and the various measures taken by New York and other states to ensure agents do not abuse the power granted to them by principals who are no longer competent to manage their affairs.
Wednesday, July 26, 2017
Medicaid qualifications tend to vary from state to state. Generally, there exist some asset thresholds that may not be exceeded in order to qualify for aid. With Republicans in Congress seeking legislation aimed at reducing Medicaid benefits, ethical concerns regarding hiding wealth in order to achieve qualification have been forced back into the limelight.
There are two well-defined perspectives when it comes to hiding assets: those that refuse to do it, and those who are perfectly willing to hide their property in order to qualify for Medicaid. Janet Kinzer offered a poignant rebuke to those hiding assets: “People who engage in such planning are privileged enough to be aware of it and can afford the legal fees. Shouldn’t tax dollars only go toward the care of people who lack such access?”
While a fair point, there are a number of rebuttals, including the general unavailability of benefits for those suffering from dementia and other degenerative diseases; maladies that often require highly skilled care and constant supervision for extended periods of time. When faced with the very real possibility of exhausting every penny of saved wealth and leaving nothing to children in order to pay for long-term care, this ethical consideration becomes a bit less black-and-white for many.
A quick warning, if you are ethically comfortable hiding assets to gain Medicaid benefits, be sure to hire a qualified attorney to help with the process. The intricacies of hiding assets is extremely convoluted, complex, and may have unintended consequences if undertaken without competent legal assistance.
See Ron Liber, The Ethics of Adjusting Your Assets to Qualify for Medicaid, The New York Times, July 21, 2017.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
Tuesday, July 25, 2017
Article on Identifying Connections between Elder Law and Gerontology: Implications for Teaching, Research, and Practice
Nina A. Kohn,Maria Teresa Brown, & Israel Issi Doron recently published an Article entitled, Identifying Connections between Elder Law and Gerontology: Implications for Teaching, Research, and Practice, Wills, Trusts, & Estate Law eJournal (2017). Provided below is an abstract of the Article:
Scholars have long called for elder law to become part of the larger study of gerontology. The authors conducted a qualitative, empirical study to determine the extent of connections between the fields of gerontology and elder law and to identify strategies for bridging gaps between the fields. As reported in this Article, we found that although both elder law academics and gerontologists indicate that both fields would benefit from research collaboration and cross-disciplinary teaching, the fields remain distinct with limited interaction. Based on these findings, we identify five key strategies for fostering meaningful connections between the fields. Finally, drawing on the expertise of the elder law academics and leading gerontologists interviewed as part of this study, we discuss how fostering such connections could work to the mutual benefit of the two fields and, potentially, improved policy-making in the area of aging.
Special thanks to Robert H. Sitkoff (John L. Gray Professor of Law, Harvard Law School) for bringing this article to my attention.
Monday, July 24, 2017
The Senate just released the newest version of its health insurance bill last Thursday. The most current form of the bill has not done much to mitigate the drastic reductions in Medicaid spending seen in the original bill. Regardless of possible cuts, it is clear that the federal and state governments are not going to be able to maintain current spending levels for aging baby-boomers as they consume more health-related services. A common question for those concerned with coverage is: "How seriously should I consider getting some kind of insurance to cover my care in case big Medicaid cuts are on the horizon?" The insurance market for long-term coverage can be extremely expensive, if you can even qualify for coverage. There is a balancing act required that must consider high premiums and not using the insurance on one side, and not paying for insurance and needing it on the other.
Though the current, heavily regulated and subsidized healthcare market is costly and inefficient, some are hoping that Big Brother will deign to meddle in the long-term care sector as well. While the federal and state governments may be able to kick the can down the road for a bit longer, a call for additional subsidies in the face of desperately needed cuts seems like trying to remove the mote from your brother's eye whilst ignoring the plank in thine own.
See Erik Jacobs, How the Medicaid Debate Affects Long-Term Care Insurance Decisions, The New York Times, July 14, 2017.
Special thanks to Joel C. Dobris (Professor of Law, UC Davis School of Law) for bringing this article to my attention.
Sunday, July 23, 2017
In an ongoing war for Michael Jackson royalties, Quincy Jones is now alleging that he has been the victim of elder abuse. The eighty-four-year-old former producer is responsible for some of Michael Jackson's most notable albums, such as: "Off the Wall," "Thriller," and "Bad." Jones is claiming executives from Sony Music and MJJ Productions pulled an accounting trick on him by labeling certain revenues as profits instead of royalties. If the revenues has been properly classified as royalties, Jones would have been entitled to a significant share of the earnings. Because he was over the age of sixty-five at the time, Jones is arguing that the executives took advantage of his advanced age in order to take a larger share of the profits. Jones is suing for at least $10 million and is expected to testify in court this week.
See Quincy Jones Says He's Victim of Financial Elder Abuse, Judge Rejects Claim, TMZ, July 19, 2017.
Special thanks to Molly Neace (J.D.) for bringing this article to my attention.
Friday, July 21, 2017
Natasa Glisic recently published an Article entitled, Expanding the Slayer Rule in Florida: Why Elder Abuse Should Trigger Disinheritance, 22 Barry L. Rev. 111 (2016). Provided below is an abstract of the Article:
This comment explains the impact that expanding the Slayer Rule will have on reducing the elder-abuse epidemic by supplementing the current elder-abuse statutes. Society and the legislature agree that a person should not benefit from his wrongdoing, so there is no reason to not expand the Slayer Rule in Florida at this time. Elder-abuse perpetrators are continuously reaping the benefits of their wrongdoing by inheriting from those they have abused.
Part I of this comment begins by looking at the current elder population and elder abuse types and trends. Part II examines Florida’s elder-abuse statutes and the reasons they are not very effective. Part III glances at the history of the Slayer Rule and Florida’s implementation of it. Part IV assesses the states that have already expanded their Slayer Rule to cover elder abuse; and Part V proposes a plan to expand Florida’s Slayer Rule.
Tuesday, July 11, 2017
For many, the onset of a degenerative disease that erodes their basic cognitive functionality is a fear-inspiring possibility. The idea of slipping into a demented state and losing precious memories, losing one’s identity, is a magnificently terrifying scenario. So, it is not surprising that many of us put off or refuse to acknowledge the need for a durable power of attorney.
A power of attorney allows a previously identified individual or financial institution to execute specified financial transactions on your behalf in case of your incapacity. These transactions may range from something as simple as paying bills to complex undertakings such as selling property or filing tax returns.
A commonly recommended power of attorney is a durable power of attorney. This document is effective upon signing and remains in effect though incapacity up to death. As long as you are competent, you may revoke this power of attorney at any time.
See Marc Hebert, Money Matters: Why You Need a Durable Power of Attorney, WMUR 9, July 6, 2017.
Erica Wood, Pamela Teaster & Jenica Cassidy recently published an Article entitled, Restoration of Rights in Adult Guardianship: Research & Recommendations, ABA Commission on Law and Aging with the Virginia Tech Center for Gerontology (2017). Provided below is an abstract of the Article:
Adult guardianship has been characterized as both a “gulag and a godsend” in which people with disabilities – including older individuals with dementia – lose their rights in the name of protection. Regardless of the good intentions of – and essential care provided by – many
guardians who often step in at crisis points, guardianship is one of society’s most drastic interventions in which fundamental rights are transferred to a surrogate, leaving an individual without choice and self-determination.
It appears that an unknown number of adults languish under guardianship beyond the period of need – and that others may never have needed the guardianship in the first place, as a less restrictive option could have sufficed. A guardianship may be terminated by the court in three scenarios: (1) the court finds that the person has regained the ability to make decisions; (2) the court finds that the person has developed sufficient decision-making supports and no longer needs the assistance of a guardian; or (3) additional evidence becomes available to show that the person does not meet the legal standard of an incapacitated person. While, on paper, each state provides for “termination of the order and restoration of rights,” there are no data on the frequency with which restoration occurs and under what circumstances.
To enhance self-determination of individuals subject to guardianship, the American Bar Association Commission on Law and Aging (ABA Commission) conducted a project to shine a light on the little known process of restoration.
Sunday, June 18, 2017
Yesterday marked the twelfth annual World Elder Abuse Awareness Day (WEAAD). Though public awareness of the day may be low, it is an internationally recognized event. Financial exploitation of the elderly is one of the most common forms of elder abuse. It has the potential to upend the financial stability of an older adult at a point in time when they are extremely vulnerable to personal pecuniary variations. By retirement age, a severe loss of in assets may be a difficult, if not impossible, event from which to recover. It is currently estimated that annual losses to elderly Americans range in the billions. Though much progress has been made over the past twelve years, there is a long way to go in the fight against elder financial exploitation.
See Stacy Canan, Preventing Financial Exploitation on World Elder Abuse Awareness Day, Consumer Protection Financial Bureau, June 15, 2017.
Special thanks to Lewis Saret (Attorney, Washington, D.C.) for bringing this article to my attention.
Tuesday, June 13, 2017
The National Center on Elder Abuse estimates that nearly 1 in 10 Americans over the age of 60 experience abuse. Research also suggests that half of individuals over the age of eighty-five suffer from some sort of cognitive impairment. An important part of financial and estate planning is considering worst-case scenarios when it comes to intellectual capacity. Planners must work with clients to establish checks and balances for their assets in case of mental degradation. Jonathan Fitzgerald, director of wealth and fiduciary planning at Wilmington Trust, has a few suggestions to help planners and their clients. First, start early. While the onset of a mental impairment may still allow enough time to plan, it is not an ideal beginning point. Second, define “capacity.” This is left to the judgement of the client, but the final definition of what “capacity” entails should be clearly understood and recorded. Finally, set up revocable trusts. Many trusts include clauses that are invoked upon the incapacity of the settlor/beneficiary.
See David H. Lenok, Seven Tips for Protecting Clients from Elder Abuse, Wealth Management.com, June 9, 2017.