Wills, Trusts & Estates Prof Blog

Elderly Woman Prompts Guardianship Reform After Spending $100,000 to Prove Her Competence

Sophie Paulos, 91, spent three months and $100,000 trying to protect her independence.

The process began when two of her daughters suspected the third daughter of taking advantage of Paulos while her health was deteriorating.  After an investigation by the Adult Protective Services, Paulos had to pay $30,000 for a court-appointed guardian ad litem she never wanted.  She then hired her own attorney to fight the guardianship process and paid over $70,000 for this second lawyer and related legal expenses.

These outrageous costs have prompted proposed measures to reform the guardianship system such as shortening time periods for which to hold hearings and forcing those that initiate guardianship proceedings to sign affadavits.  Although these measures have gained support from organizations like AARP, judges and lawyers across Texas see any changes to the current system as unnecessary roadblocks.

See Andrea Ball, Woman’s Costly Court Battle Prompts Call for Reform of Guardianship System, Austin American-Statesman, May 12, 2013.

Senator Coburn Supports Death Master File

Senator Tom Coburn from Oklahoma recently stated that he would be in support of a proposal that would provide "federal agencies greater access to the Social Security Administration Death Master File (DMF)." The proposal, which was introduced by the Obama Administration, would hopefully help the government "prevent stolen identity refund fraud crimes."

See William Hoffman, Coburn Pledges Support for Administration Proposal on Death Master File, 2013 TNT 90-5, May 8, 2013; see also, Senator Coburn Supports Death Master File Proposal, Wealth Strategies Journal, May 9, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Mother Sues Son For Taking Her House

An elderly woman in Galveston, Texas named Lydia Gracia sued one of her sons, Joseph, for taking her house. Joseph claims that he has a right to the house because it is compensation for the fact that he lost "two vehicles to his siblings." Lydia only discovered the change after when she went to pay her property taxes. She claims that he she did not "knowingly nor intentionally conveyed her home to [Joseph]." Even though she has made several requests, Joseph has not returned the home to her. Finally, Lydia contacted and complained to an adult protection agency and police. Once that occurred, Joseph returned the house to her. Lydia is asking a court to grant her $250,000 in punitive damages and a ruling that her son obtained the deed to her house through fraud.

See Cameron Langford, Just in Time for Mother's Day, Courthouse New Service, May 9, 2013.

Comparing Conflicts of Interest in Medicine, Research, and Law

There are other conflicts of interest outside the what attorneys usually think of when conflicts of interest are discussed within the elder law context. For example, conflicts of interest could happen when elderly patients "with impaired decision-making capacity [enter into] clinical and experimental medicine when legal counsel and advance health care and research participation planning have not taken place." Often, these conflicts of interest emerge when these patients do not have an advance directive or an advanced biomedical or behavioral research directive. Furthermore, these conflicts of interest are made more complicated by the fact the states have different approaches to managing these conflicts. Additionally, problems can emerge from the differing standards of professional conduct between attorneys and medical professionals.

See Stacey Tovino, Conflicts of Interest in Medicine, Research, and Law: A Comparison, 117 Penn. St. L. Rev. 1291 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Article on Changes in Elder Law in our Aging World

Katherine C. Pearson (Professor of Law, Penn State University - The Dickinson School of Law) recently published an article entitled, Capacity, Conflict, and Change: Elder Law and Estate Planning Themes in an Aging World, 117 Penn St. L. Rev. 979 (2013). Provided below is the abstract from SSRN:

The 2012-13 Symposium Issue of the Penn State Law Review arose out of collaboration between two sections of the Association of American Law Schools (AALS) for the Annual Meeting in January 2013. The leadership of the Section on Trusts and Estates and the Section on Aging and the Law called for dialogue among scholars who teach, research and write in these and related fields, with a special eye to the demographics of population aging. This article introduces the themes heard in the conference and highlights key themes of the formal papers.

Couple Swindles Hundreds of San Diego Seniors

Michael Woodward and his wife, Melissa, have been arrested and charged with 11 felonies for collecting pre-paid annual fees on contracts for in-home senior services.

The Woodwards have been accused of scamming San Diego senior citizens out of $1.9 million dollars after not following through on the contracts.  Investigators are still searching for additional victims in surrounding counties.

See Debra Gruszecki, Elder Scam: Hunt for Inland Victims of Bogus Senior Service Contracts, The Press-Enterprise, Apr. 26, 2013.

Article on Social Security Payee Misuse

Reid K. Weisbord (Assistant Professor of Law, Rutgers Law School - Newark) recently published an article entitled, Social Security Representative Payee Misuse, 117 Penn St. L. Rev. 1257 (2013). Provided below is abstract from SSRN:

This Article examines the problem of benefit misuse within the Social Security representative payee system, identifies shortcomings in the current legal framework for policing the payee’s conduct, and proposes legislative reform. The Social Security “representative payee” system serves an important function by protecting beneficiaries who have cognitive impairments and therefore cannot manage their own financial affairs. For beneficiaries living in an institutional setting, such as a nursing or group home, however, the appointment of the home or home administrator as representative payee creates conflicts of interest that adversely affect the beneficiary. Benefit misuse by representative payees in this setting tends to go undetected because the Social Security Administration lacks resources to perform universal audits and the cognitively compromised beneficiary is often incapable of detecting financial improprieties. To improve oversight of institutional representative payees such as nursing and group homes, this Article proposes that Congress create a “family representative” program wherein a concerned relative or friend would be authorized to monitor the payee without assuming the burdens and liabilities of a representative payee appointment. The family representative would be a person familiar with the beneficiary’s needs and circumstances and would receive a copy of all reports submitted by the representative payee to the Social Security Administration. The family representative’s access to information regarding the payee’s performance would facilitate greater detection and reporting of benefit misuse to the Social Security Administration than under the current system. The Article’s Appendix contains legislative language for a proposed statutory amendment to the Social Security Act that would implement the family representative program.

Social Security Representative Payee Misuse

There is a problem of benefit misuse within the Social Security representative payee system. While the "Social Security “representative payee” system protects beneficiaries who have cognitive impairments,... the appointment of the home or home administrator as representative payee creates conflicts of interest that adversely affect the beneficiary." This could leave these vulnerable members of society open to misuse by the representative payee. Unfortunately,  the Social Security Administration does not have resources to detect all instances of misconduct; therefore, abuse often goes unnoticed. One potential solution is to create an alternative system, known as a “family representative” program. In this program, a relative or friend would monitor the representative payee appointment. "The family representative’s access to information regarding the payee’s performance would facilitate greater detection and reporting of benefit misuse to the Social Security Administration than under the current system."

See Reid K. Weisbord, Social Security Representative Payee Misuse, 117 Penn St. L. Rev. 1257 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Attorney and Husband Convicted in 2010; Now Facing Federal Charges

In 2010, Kissimmee attorney Linda Littlefield and her husband and Ross were arrested and convicted for taking money from the elderly. Linda is still serving part of a two-year sentence and Ross was sentenced to probation. 

Federal investigators said that there are now 26 victims who put money in a "special trust," and now the couple is facing federal charges for their schemes.

See Investigators: Kissimmee Couple Ripped Off Elderly, wftv.com, May 7, 2013. 

Elder Law Conflicts of Interest In The US and Canada

Conflicts of Interests often occur within the the elder law context, which can be a problem considering that it often involves people with disabilities.  Regardless of the problems that could occur within this context, there is little discussion about the issues that could arise from conflicts of interest in elder law. Within American elder law, issue of conflicts of interest are prominent. "From an international perspective, a perception may be created of elder law as a peculiarly American practice area, and one which is rife with real and potential conflicts that elder law practitioners—and those who would export the model—may prefer to ignore." Unfortunately, this perception has stunted the growth of the field elder law in an international context, one which still does not translate to other non-American jurisdictions. Thus, as the discussion develops some hope that will help develop elder law as a topic.

See James H. Pietsch & Margaret Hall, “Elder Law” and Conflicts of Interest in the United States and Canada, 117 Penn St. L. Rev. 1191 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Representing Seniors With Cognitive Changes

As more Americans age in to their golden years, attorneys are increasingly see and advising elderly clients about their estate planning needs. One of the many problems our aging population has inadvertently brought is that many attorneys do not have the knowledge about the aging process needed to know how it could impacts their elderly clients. Many seniors experience cognitive changes that could impact their ability capacity to create legal documents. However, there is not a good source of information for attorneys to learn how to accommodate their clients who experience cognitive changes that are not the result of diminished capacity or dementia. Many elderly people often gain wisdom at an older age, and attorneys need to know how to properly advise these clients to accommodate their wishes. The article provided below attempts to create guidelines to help attorneys advise their elderly clients.

See Mary Helen McNeal, Slow Lawyering: Representing Seniors In Light of Cognitive Changes Accompanying Aging, 117 Penn. St. L. Rev. 1081 (2013).

Special thanks to Katherine Pearson (Professor of Law, Penn State University - The Dickinson School of Law) for bringing this article to my attention.

Article on the 2010 MIPPA Legislation

Robert S. Bloink (Visiting Assistant Professor of Law, University of South Dakota Law School) recently published an article entitled, Putting Boomers to Pasture: Does the 2010 MIPPA Legislation Reinforce the Nursing Home Bias?, 33 Pace L. Rev. 152 (Winter 2013). Provided below is the introduction to his article:

Unfunded health related costs are the greatest financial uncertainty facing the baby boom generation as they enter retirement years. The vast majority of those costs will relate to home and institutional based health care services provided in the last months of their lives. When presented with the choice of receiving such end-of-life care in a home based setting versus an institutionalized setting, almost every senior will opt for home based care. Prior to 2010, the Medigap at-home recovery benefit covered expenditures incurred in connection with in-home skilled medical care covered by a Medicare policy, such as personal care services that many seniors require in order to avoid a nursing home stay. The at-home recovery benefit was eliminated by the Medicare Improvements for Patients and Providers Act (“MIPPA”) in 2010. The Supreme Court took a decidedly different approach regarding access to home based health care options for this Medicaid-eligible senior population in Olmstead v. L.C. ex rel Zimring. The Olmstead decision acknowledged the long standing bias toward providing end-of-life health care services in an institutionalized setting, typically a nursing home, and, in an effort to have more of these Medicaid services provided in-home, required that “public entit[ies] . . . administer . . . programs . . . in the most integrated setting appropriate to the needs of qualified individuals with disabilities." Through this “integrated care” mandate, the Supreme Court recognized that the unjustified segregation of poor seniors in institutions was discrimination and that home and community based services (“HCBS”) care options must be provided where appropriate and reasonable in light of the patient’s needs. However, it is the engrained nursing home bias that non-Medicaid-eligible middle class boomers are likely to fall victim to, despite their stated intentions to the contrary.

Because administering end-of-life care in a nursing home setting has become the default in the United States, today current retirees who fail to make affirmative decisions about how and where their end-of-life care will be administered will have little choice but to receive long-term care in an institutional setting. Failure to affirmatively engage in planning for end-of-life care choices is often simply a byproduct of limited information and even less professional guidance available regarding such decisions. This article seeks to explore what lessons can be learned from how Medicaid end-of-life health care services are provided to the poor post-Olmstead, and how these lessons can be applied to middle class and upper middle class boomers. The article equally seeks to address how such lessons can be integrated into a meaningful dialogue with retiring boomers in a fashion that encourages discussion and decisions regarding end-of-life health care, as opposed to leaving such tough calls for surviving adult children.

To this end, Part II of this article begins by examining the hurdles seniors face in accessing HCBS after the defunding of the Medigap at-home recovery option in 2010, taking into account the difficulties involved in planning for long-term care that are caused by significant cost variances depending on the community in which the care is provided. This section further explores the impact of informal care provided by family members on the cost and effectiveness of long-term care performed in the home.

Part III provides a summary of the historical background of long-term care in the United States and explores the genesis and perpetuation of the bias toward providing end-of-life care in an institutional setting, despite the high costs of nursing home care, leading up to the integrated care mandate handed down by the Supreme Court in Olmstead. In Part IV, the varying degrees to which states have implemented the Olmstead mandate are examined to provide an empirical analysis of the cost-savings and reduction in nursing home admission rates that can be realized through effective and widespread implementation of HCBS programs. Spending on long-term care in states with underdeveloped HCBS programs is compared to expenditures in states offering comprehensive programs to determine the overall effect of increasing access to HCBS.

Part V identifies the planning gap that exists because of the reluctance of both advisors and clients to discuss end-of-life care. This section recognizes the often-conflicting motivations of financial advisors and attorneys, as well as the disinclination of clients toward discussing the end of their lives, both of which can lead to a joint failure to develop effective strategies for funding end-of-life care.

Part VI aims to encourage advisors and clients to ignite the dialogue on end-of-life planning. It discusses the possible imposition of filial responsibility upon adult children for the long-term care expenses of their elderly parents and suggests that selective enforcement of filial support statutes could promote financial preparedness among baby boomer retirees. This section also raises the notion that fiduciary liability may be a motivating force that could persuade advisors to initiate the planning dialogue. With both sides motivated to engage in fulsome planning for end-of-life choices, this article hypothesizes that this planning dialogue can be transformed from one that advisors avoid and clients recoil from into a conversation that imparts a message of empowerment and hope among seniors who can develop the tools necessary to control the course of their own end-of-life care.

Warnings of Elder Abuse

There is a growing concern of elder abuse. Aging individuals that suffer from mental diseases like dementia are particularly vulnerable to abuse. Below are warning signs that can be helpful to raise a suspicion of elder abuse. Taken individually these warnings are not inherently meaningful. However, any combination of these signs could indicate a problem with abuse. 

1. The caregiver is secretive about the elder’s finances. 
2. The elder is financially supporting the caregiver. 
3. The caregiver isolates the elder from others. 
4. The caregiver insists on being in the room when anyone else is present. 
5. The caregiver has a history of substance abuse.
6. There are changes in the estate planning paperwork.
7. The caregiver moves the elder to his home without warning. 

See Carolyn Rosenblatt, Is a Family Member Ripping Off Your Aging Parent?, Forbes, Apr. 22, 2013.

Article on Social Security Representative Payee Misuse

Reid K. Weisbord (Assistant Professor of Law, Rutgers Law School - Newark) recently published an article entitled, Social Security Representative Payee Misuse, Penn State Law Review, Vol. 117, No. 4 (2013). Provided below is the abstract from SSRN:

This Article examines the problem of benefit misuse within the Social Security representative payee system, identifies shortcomings in the current legal framework for policing the payee’s conduct, and proposes legislative reform. The Social Security “representative payee” system serves an important function by protecting beneficiaries who have cognitive impairments and therefore cannot manage their own financial affairs. For beneficiaries living in an institutional setting, such as a nursing or group home, however, the appointment of the home or home administrator as representative payee creates conflicts of interest that adversely affect the beneficiary. Benefit misuse by representative payees in this setting tends to go undetected because the Social Security Administration lacks resources to perform universal audits and the cognitively compromised beneficiary is often incapable of detecting financial improprieties. To improve oversight of institutional representative payees such as nursing and group homes, this Article proposes that Congress create a “family representative” program wherein a concerned relative or friend would be authorized to monitor the payee without assuming the burdens and liabilities of a representative payee appointment. The family representative would be a person familiar with the beneficiary’s needs and circumstances and would receive a copy of all reports submitted by the representative payee to the Social Security Administration. The family representative’s access to information regarding the payee’s performance would facilitate greater detection and reporting of benefit misuse to the Social Security Administration than under the current system. The Article’s Appendix contains legislative language for a proposed statutory amendment to the Social Security Act that would implement the family representative program.

Supreme Court of Pennsylvania Appoints Elder Law Task Force

The highest court in Pennsylvania has appointed a new task force charged with studying the growing problem of guardianship abuse and neglect in Pennsylvania. The 38 member task force, composed of judges, lawyers, and other experts, is suppose to develop solutions for these large problems. The task force is organized into three subcommittees each focused on their own set of problems related to elder law and guardianships. One will be "devoted to appointment and qualifications of guardians and attorneys, a second on guardianship monitoring and data collection, and a third on elder abuse and powers of attorney." The task force will work on this problem for at least a year. The task force recently met this past week to begin their work.

See Neil E. Hendershot, PA Supreme Court Appoint New Elder Law Task Force, PA Elder, Estate & Fiduciary Law Blog, Apr. 18, 2013.

Sources for the Elderly and Their Caretakers

Recently, the New York times published an article that referenced a comprehensive list of online resources for the elderly and their adult children or other caregivers. 

The list of sources is divided into the following categories: government sites, housing and services, caregiving, legal and financial, end of life, miscellaneous, advocacy, emotional support, magazines, and blogs.

Please click here to view the list of sources. 

See Jane Gross, Caring for the Elderly, The New York Times, Apr. 22, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Discuss These Five Things With Your Spouse Before Retirement

Elderlaw Answers suggests five topics to discuss with your spouse before you retire. Those five topics are listed below: 

1. Timing of Retirement: Among the many factors that go into choosing a time to retire, couples should think about how to best maximize their Social Security benefits. 

2. Finances: Both spouses should understand their financial situation and have a clear understanding of whether those situations are working in sync.

3. Type of lifestyle: Couples should discuss their hopes and dreams for retirement. Each partner making his or her own list and then comparing those lists is a good place to start.

4. Health Care: Be sure that both you and your spouse have adequate health care coverage. 

5. Long-term care: Speak to your elder law attorney about putting a plan together for this early on. 

See Five Topics to Discuss With Your Spouse Before You Retire, ElderLawAnswers, Apr. 8, 2013. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

The Rise in Dementia Cases and Cost

Recently, a study revealed the cost to care for people with dementia is comparable to the cost of caring for someone with cancer and could be higher. Over the next 30 years, the number of people with dementia will more than double. In 2010, over $109 billion was spent on dementia health care. According to the RAND study, in one year the cost to treat a person with dementia is about $41,000 to $56,000. The study used information collected over a ten-year period on 11,000 people from the Health and Retirement Study database. Many researchers are concerned that the country is not ready for the drastic increase in the number of people and the cost of dementia.

See Pam Belluck, Dementia Care Cost Is Projected to Double by 2040, The New York Times, Apr. 3, 2013.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

Financial Advisers Now Under The Scope

Some have called for stricter regulations of the methods that financial advisers use to report their credentials and their experience working with older Americans. Some “financial advisers use more than 50 different credentials, some of which they can simply buy online.” The large disparity between the different credentials have possibly left many older Americans confused, which could leave them open to abuse by unscrupulous advisers. For example, there is a considerable difference in the amount of education between an Accredited Retirement Advisor and an Accredited Estate Planner.

A recent study would like for both state and federal agencies to set standards for the amount of education that a person can have before they can obtain certain designations that would show that they have expertise in working with senior citizens. The report also recommended that both levels of agencies set rules of conduct for advisers on what designation advisers can claim. Furthermore, the report also asked for the creation of a tool that seniors would be able to use to determine exactly the credentials of an adviser and the training he or she has received. 

See Emily Stephenson, Financial Advisers’ Credentials Mislead Seniors, Watchdog Says, Hartford Courant, Apr. 18, 2013.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

New Jersey Man Defrauds Dying Woman by Posing as Nephew

James J. Demitro, a 43-year-old man from Matawan, New Jersey, admitted to stealing about $1 million dollars and the family home of a terminal cancer patient with dementia. 

Demitro defrauded the 87-year-old Red Bank woman by posing as her nephew and hiring attorneys to draft a will naming him executor and full beneficiary of her estate.  Demitro also had attorneys transfer the deed of the woman’s home to himself for $1.  He was arrested with over $600,000 found in his bank accounts and a $150,000 Ferrari Spyder in his possession.  Under the terms of his plea agreement, Demitro now faces eight years in prison for attempted impersonation and theft by deception.

See Rob Spahr, Matawan Man Admits to Stealing $1M, House from Dying Woman with Dementia, www.nj.com, Apr. 12, 2013.