Elder Law Prof Blog

NC Rules Review Commission proposes standards governing use of "senior specialist" designations

On January 22, 2010, the NC Rules Review Commission approved the Department of the Secretary of State’s proposed rule on the use of senior designations by securities dealers, securities salesmen, investment advisers and investment adviser representatives. The rule becomes effective on February 1, 2010.

The rule, based on the Model Rule that the North American Securities Administrators Association (NASAA) adopted on March 20, 2008, applies only to people registered as securities dealers or salesmen and as investment advisers or investment adviser representatives.

In North Carolina, securities and investment advisers are prohibited by law from engaging in dishonest or unethical conduct. However, in recent years, securities regulators across the nation, including the NC Securities Division, have seen an explosion in the number of professional designations that various financial services professionals use in selling investment products. According to the September 2007 report, Protecting Senior Investors: Report of Examinations of Securities Firms Providing “Free Lunch” Sales Seminars, government and regulatory investigators determined that the use of some of these titles were confusing to many people and served to mislead them into thinking that the certifications were issued by a regulatory authority, when in fact that is not the case. In many cases, the credential serves merely as a marketing tool designed to convey the impression that the holder has more expertise than perhaps (s)he has. The rule which the Securities Division has adopted, therefore, is intended to prohibit the deceptive and misleading use of such designations in connection with the sale of investment products and services.

To read the full notice, go here. 

Student Attorneys and Confidentiality Questions

A question that routinely comes up in the Elder Law Clinic setting where students are representing impaired elder clients is whether the student attorney's ethical obligations toward such clients are the same as they are in any lawyer-client relationship, particularly with regard to confidentiality and third-party presence.

 

Here are some suggestions from Kate Mewhinney at Wake Forest:

 

• "To Speak or Not to Speak:  Effect of Third Party Presence on Attorney Client Privilege" by Roberta K. Flowers, in the NAELA Journal, Vol. 2, No. 1, 2006 suggests that if a third party's presence is necessary in order to facilitate lawyer-client communication, the client may not be said to have waived his/her right to confidentiality;
• The caregiver might show the student-attorney some basic ways of assisting the client, and then the caregiver can step out into a nearby lobby (assuming this is medically safe). 
• If the matter involves a potential conflict of interest with the caregiver or the chance that undue influence would later be alleged --- is the client considering leaving assets to the caregiver or is the client considering appointing the caregiver to be a medical or financial agent -- perhaps a different person could come into the interview room to assist, if direct hands-on help is required at every moment.
  

The bottom line is that the student-attorneys (and all attorneys, for that matter) need to figure out what the client needs in order to feel safe and receptive to the attorney.  That might require -- at least for a portion of the interview -- the presence of a third party.  Students should be aware of that possibility, and the ethical implications of making a choice to invite someone in to the interview.  But being aware of the ethical implications does not mean not doing it.  It simply means doing it in such a way that both the client and the attorney feel comfortable.

Jobs and aging policy: What the President didn't say

I listened to President Obama's marathon State of the Union message last night with increasing dismay.  NOT ONE WORD about aging policy or how his administration plans to address the nation's exponentially growing need for housing, transportation, health care providers, etc. aimed at an aging population.   There are severe shortages of qualified persons to work in all these areas.  Will the President's jobs program include training for caregivers and others who work with the elderly? 

TheParaprofessional Health Institute has prepared a fact sheet discussing how creating high-quality jobs in the eldercare/disability care sectors would generate significant economic and social benefits.  Here's an excerpt from the document:  

The eldercare/disability services industry employs more people than nearly any other industry in the country. Direct-care jobs are the employment core of this industry and are among the nation’s fastest-growing occupations. Improving the quality of these jobs—home health aide, certified nurse aide and personal care attendant—is not only vital to our social infrastructure, but has the potential to drive economic growth, particularly within low-income communities. Given the sheer numbers of these occupations today as well as their tremendous expected growth, direct-care jobs are uniquely positioned to help repair and stabilize our faltering economy

• Direct-care jobs undergird local economies. Direct-care jobs constitute a $56 billion economic engine fueled by the personal income that over 3 million direct-care workers spend largely on locally produced goods and services in their communities.
• Direct-care workers support employed family caregivers and their employers.A stable, well-prepared direct-care workforce is critical for supporting an estimated 15.9 million additional workers who balance full-time employment with caregiving for a family member over age 18. The lost productivity of family caregivers who are also employed full time is estimated to cost employers $33.6 billion annually, with a third of the costs attributable to workers either leaving their jobs or switching from full- to part-time work in order to accommodate their family caregiving responsibilities.
• Poor quality direct-care jobs strain public resources. The vast majority of directcare jobs are publicly funded, paid for by Medicaid and Medicare. However, high rates of annual turnover—more than 70 percent in nursing homes, and between 40 and 60 percent in home care agencies—lead to staggering turnover costs conservatively totaling $5 billion annually. In addition, 40 percent of directcare workers live in households that rely on one or more public benefits, such as Medicaid or food stamps, reflecting the heavy public subsidies required to compensate for the low wages and inadequate benefits received by most of these workers.

Read more on this issue from PHI's Policy Brief

Eldercare/Disability Services: Untapped Engine for Job Creation and Economic Growth

http://www.directcareclearinghouse.org/download/PHI%20FactSheetNo2.pdf

Asst. Sec. Greenlee requests input on OAA reauthorization

Since 1965, the Older Americans Act (OAA) has gained recognition as a unique and highly regarded statute that has stimulated the development of a comprehensive and coordinated service system.  This system has contributed greatly to enhancing the lives of older individuals, family caregivers, and persons with disabilities.  In 2011 Congress will consider reauthorization and amendments to the Act effective in FY 2012.  In anticipation of this process, the Administration on Aging (AoA) is soliciting input concerning the reauthorization through three mechanisms: (1) AoA-Convened Listening Forums; (2) OAA Reauthorization Input Events; and (3) Direct Input via the AoA Website.

AoA-Convened Listening Forums will be held in three cities.  The input provided will be recorded, compiled and summarized by Scripps Gerontology Center. The dates and locations of the national listening forums are:

Thursday, February 18, 2010     Dallas, TX
                                        Embassy Suites Hotel Dallas Near the Galleria
                                        14021 Noel Road
                                        Dallas, Texas 75240
                                        (972) 354-3659

Thursday, February 25, 2010     Washington, DC
                                        The Westin Alexandria-DC, Alexandria, VA
                                        400 Courthouse Square
                                        Alexandria, VA  22314
                                        (703) 253-8628

Wednesday, March 3, 2010                San Francisco, CA
                                        Hyatt Regency San Francisco
                                        5 Embarcadero Center
                                        San Francisco, CA 94111
                                        (415) 981-3638

The forums in Dallas and San Francisco will convene at 9:00 a.m. and conclude at 4:30 p.m.  They will begin with morning panel sessions organized to focus on a limited number of national topic areas in the following broad categories: (1) Elder Rights and Elder Justice; (2) Prevention & Wellness – Healthy Aging; and (3) Aging Network Infrastructure for Serving Diverse Needs.  The Washington DC forum will also convene at 9:00 a.m. and conclude at 4:30 p.m.  It will include the 3 categories of topics above, as well as a fourth category, Capacity of the Aging Network. 

Following the panel sessions, each forum will host a general session to allow participants to present their views on the reauthorization of the OAA.  In order to provide as many people as possible the opportunity to offer input, each participant will be limited to three minutes.  Persons planning to make presentations during the general session should pre-register with Abbe Lackmeyer, 866-598-0102, [email protected] to reserve a time slot.  If all slots are not filled through pre-registration, a limited number of on-site time slots may be available.

OAA Reauthorization Input Events may be held by any national, state, tribal, regional or local organization.  These can range from workshops, board meetings, public forums, or conferences designed to solicit public input regarding issues to be considered during the next reauthorization of the OAA.  Following the events, summary reports developed by the sponsoring organization(s) may be submitted to AoA.  Visit http://www.aoa.gov/AoARoot/AoA_Programs/OAA/Reauthorization/Index.aspx for more information.

Minnesota Gerontological Association posts program on seniors and driving

The Minnesota Gerontological Society has developed a program with Minnesota public television station tpt and other partners entitled "Love of Car: Transportation as We Age".  Find the program at
www.mngero.org as well as additional resources about transportation issues implicating older people. 

 

NSCLC Publishes Issue Brief on Medicaid Payment for Assisted Living

State Medicaid programs increasingly are able to pay for assisted living services, but most consumers and advocates know little about how these programs work.  In this case, what you don’t know can hurt you, as policies differ widely from state to state, and many state Medicaid programs follow rules that disadvantage assisted living residents and their families.

The National Senior Citizens Law Center has released an issue brief that examines many of the most important issues in Medicaid payment for assisted living, and makes recommendations for policy changes at the federal and state levels.  Among other things, the issue brief recommends that Medicaid-certified facilities be required to accept Medicaid from Medicaid-eligible residents, and not be allowed to demand or solicit “supplemental payments” from residents’ family members or friends.  The federal government at a minimum should require that Medicaid-certified facilities not discriminate against Medicaid-eligible residents.

The brief is available at NSCLC's website at: http://www.nsclc.org/areas/long-term-care/Assisted%20Living/medicaid-payment-for-assisted-living-current-state-practices-and-recommendations-for-improvement/at_download/attachment.

 

 

Civil suit filed in egregious nursing home abuse case

The operator of nursing home in Albert Lea (MN) and four fired nursing assistants were sued Tuesday over allegations that the aides groped, spanked and spat on several nursing home residents suffering from dementia or Alzheimer's disease.  The lawsuit filed Tuesday in Freeborn County claims the nursing assistants spent four months abusing residents at Good Samaritan Society in early 2008.

Among other things, the lawsuit alleges the aides hit a male resident in the testicles, poked women in the breasts and spit water on a resident. The lawsuit accuses one aide of inserting her finger into a resident's rectum. Another aide is accused of shoving her bare buttocks in a resident's face, and telling another resident she was in jail to confuse and distress the woman.

The nursing assistants also are accused of taunting residents until they screamed.

"The lawsuit really is an effort to try and change the system. We're talking about four families that were dramatically affected by what happened here," said Jim Carey, an attorney for the plaintiffs. "What you found in this case was horrific, systemic and continual abuse.

More:  WCCO, http://wcco.com/local/nursing.home.aides.2.1449970.html

Helping Elders Clear Title – a Pro Bono or Elder Law Clinic project?

A recent alumnus of William Mitchell, who is working in the home mortgage department of a national bank, describes the following growing problem:  “We are speaking with elderly applicants who have old liens recorded on their titles which should not be there.  What's sad about the situation is that a lot of applicants are widows or widowers who had their spouse take care of all their property and lien issues, and they have no idea what to do to take these old liens off so the refinancing application can proceed.”  

As a first step toward helping this group of people, he suggested that elder law clinics and/or legal services programs that serve elders could develop a checklist to identify folks who might be in similar situations, something along the lines of:

• When was the last date you checked your title? ·
• Are you aware of all liens reported as open on your credit report?
• Are there liens listed as open on your credit report that should be closed?
• Does your title have any liens recorded on it that should not be there?
• Does your title have any liens not recorded on it that should be there? ·
•  Does your title have a current lien on there, but that lien's amount has increased/decreased, or has it been bought/superseded by another mortgagee? ·
• Do you have the proper documents necessary to remove/modify/add the proper liens to your title? ·
• Do you know how to modify your title?

What do folks think? Are there clinics or programs doing this kind of work? Is the problem one people are seeing in their regular practice? Are there other resources that can be used to address the issue?

New Ethical Guidelines for Physicians in Working with Patients and Family Caregivers

New Ethical Guidelines for Physicians in Working with Patients and Family Caregivers

On January 12, 2010, the American College of Physicians (ACP) issued a position paper to guide ethical relationships among patients, physicians and family caregivers.  The paper outlines four primary principles for physicians, who may face ethical challenges collaborating with patients and caregivers while preserving the primacy of the patient-physician relationship.  One of those principles is for physicians to recognize the valuable role caregivers play in providing continuity of care.  The paper was originally published in the Journal of General Internal Medicine (January 11, 2010). To read Family Caregivers, Patients and Physicians: Ethical Guidance to Optimize Relationships, visit:

American College of Physicians

White House hosts meeting of Middle Class Task Force

White House Middle Class Task Force Meeting to lay out investments for middle class families, including efforts to expand support for family caregivers.  Today, President Barack Obama and Vice President Joe Biden held a meeting of the Middle Class Task Force, where they will lay out key investments for middle class families that the President will discuss in his State of the Union address, including efforts to expand support for families balancing work with caring for elderly relatives. HHS Secretary Sebelius, a member of the Middle Class Task Force, will participate in the meeting, and Assistant Secretary Greenlee will attend with her. 

More information about the meeting and the Task Force is available at

http://www.whitehouse.gov/strongmiddleclass/

Serial rapist targets elderly women in Texas

Texas governor Rick Perry has ordered the creation of a task force to investigate the targeting of elderly women by a possible serial rapist. At least eight women ages 65 to 91 have been raped or reported an attempted sexual assault in rural Central Texas towns in the last year. Other women were robbed. One 81-year-old scared off an intruder by firing a gun. The authorities believe all the cases are connected to a man who has been called the Twilight Rapist.

More:  New York Times, http://www.nytimes.com/2010/01/22/us/22brfs-TASKFORCEWIL_BRF.html?scp=6&sq=elderly&st=cse

Prof. Grose (William Mitchell) signs on as blog co-editor

Beginning next week, Professor Carolyn Grose of William Mitchell will be joining me as a co-editor of the Elder Law Prof Blog.  Professor Grose teaches a variety of courses including Trusts and Estates, Family, Advocacy, and a Legal and Tax Planning Clinic whose clients include seniors presenting a wide range of isses.  Carolyn is a member of the core faculty of the Center for Elder Justice and Policy.

How did I miss this? Google Scholar now has all federal cases in its database

I just learned from my state bar journal that Google Scholar's databases now include full text federal cases, with citing references and the whole deal.  How did I miss this?  If someone as supposedly tech-aware as I think I am just found out about this relatively new feature (debut Nov. 2009) I am guessing at least some readers of The Blog did too.  If you've never used Google Scholar, go here, http://scholar.google.com/, and select federal cases.  Tips on using the legal databases are available at http://googleblog.blogspot.com/2009/11/finding-laws-that-govern-us.html

Try it, you'll like it....

This is what I get for ignoring the Google Blog....

EEOC's proposed ADA regs provoke comment

From the Wisconsin  Law Journal: 

The ADA Amendments Act (ADAAA), which went into effect on Jan. 1, 2009, expressly authorized the EEOC to revise its regulations to conform to changes made by the Act. Simply put, the ADAAA significantly expands the ADA, and the EEOC’s proposed regulations are expansive. Some of the proposals include the following:

• Expanding the definition of major life activities.
  
  The proposed regulations include two non-exhaustive lists of major life activities. The first list includes activities, such as caring for oneself, hearing, seeing, sitting and lifting, whereas the second list includes major bodily functions, some of which were not originally included by Congress.

• Providing that mitigating measures may no longer be taken into account.
  With the exception of eyeglasses or contact lenses, the positive effects from an individual’s use of one or more mitigating measures are ignored.
  
  However, the ADAAA allows consideration of the negative effects from use of a mitigating measure in determining if a disability exists. For example, the side effects of a medication taken to treat a medical condition will be taken into account in determining whether or not the underlying condition counts as a disability.
• Providing that conditions which are episodic or in remission may be considered a disability.
   Impairments that are episodic or in remission, such as epilepsy, cancer, and many kinds of psychiatric impairments, are disabilities if they would “substantially limit” major life activities when active.

Read more in the Wisconsin Law Journal

Special tax alert from NAELA

NEW TAX BASIS RULES AND ESTATE TAX REPEAL HAVE COME JANUARY 1ST

NAELA’s Tax Section wishes to alert all NAELA members about two huge tax law changes effective on January 1st that will affect many estate plans.  These changes are the repeal of the federal estate and the cut back of the important stepped-up tax basis.

1. Derailed by more important matters in 2009, Congress failed to prevent the repeal of the estate tax for 2010 only.  Next year in 2011 the estate tax is reinstated with only a $1.0 million exemption, unless Congress acts in 2010.  There is talk that Congress may even retroactively reinstate the estate tax sometime in 2010.  Estate tax repeal could hurt the surviving spouse of someone dying in 2010 if the couple has a Marital Trust/Bypass Trust Plan (also known as an A/B plan), as the wording of the documents may leave all the assets to the bypass trust, cutting out the surviving spouse.

2. The second tax law change introduces new IRC Section 1022, which replaces former IRC Section 1014.  New Section 1022 curtails the stepped-up tax basis for capital assets acquired from a decedent.  Many read Section 1022 to only allow a step-up for property acquired from a decedent, for revocable trusts, jointly held property, and community property.   Some NAELA tax practitioners believe Section 1022 denies a step-up for life estates, all irrevocable trusts and all retained and granted powers of appointment.  On the other hand, other NAELA tax practitioners believe that certain irrevocable grantor trusts and life estates will still receive a stepped-up basis.  Clients need to be made aware of these issues.

The Tax Section, chaired by Robert C. Anderson,  CELA, will provide more details on these and other tax changes in the next NAELA News issue to help members get ready to help clients.

Source:  NAELA Tax Section Members Robert C. Anderson, CELA, Sharon Kovacs Gruer, CELA, and Bradley Frigon, CELA

Join NAELA!

 

Wake Forest Elder Law clinic newsletter now available online

Get it here:  http://law.wfu.edu/clinics/elder/documents/2009Fal-E-clinicnews-final-web.pdf

Highlight:  Clinical Professor Kate Mewhinney was invited to join the research faculty of the J. Paul Sticht Center on Aging. The Sticht Center, where the Elder Law Clinic is located, is part of Wake Forest University Baptist Medical Center. Also, she recently gave these presentations:

• "Doing the Right Thing: Perspectives on Ethics and Professionalism from the MultidisciplinaryTeam," (plenary panel) -- Conference on Interdisciplinary Collaborative Education Partnerships Between Law Schools and the Health Professions , September 2009, Atlanta.

• "Guardianship and Probate Mediation Before the Clerk of Court," 30th Annual Estate Planning and Fiduciary Law Program, N.C. Bar Association Estate Planning and Fiduciary Law Section, July 2009, Kiawah Island, South Carolina.

Professor Mewhinney’s article, "May I Introduce You to Your Lawyer: How We Built the Legal
Resources We Will Need," appeared in Experience magazine (ABA Senior Lawyers Division), Fall 2009.

Interagency Forum on Aging-Related Statistics releases Older Americans 2008: Key Indicators of Well Being

Older Americans 2008:
Key Indicators of Well-Being

This report provides the latest data on the 38 key indicators selected by the Forum to portray aspects of the lives of older Americans and their families. It is divided into five subject areas: population, economics, health status, health risks and behaviors, and health care.

Powerpoint Slides of Charts

Press Notes (DOC)

Excel SpreadSheets

Historical Experience of Three Cohorts (PDF)

Retirement Resources Report

• Retirement Resources Workshop:
  Exploring the implications of resource disparities among
  adults nearing retirement
  (December 5, 2008, 1-4 pm)  (pdf)
• Report Data Table

Workshop Presentations, Papers, and Reports

• Estimating Pension Wealth
• Health Insurance and the Elderly

Data Sources on Older Americans 2009

Data Sources on Older Americans 2009 highlights the aging-related products currently available from member agencies of the Federal Interagency Forum on Aging-Related Statistics (Forum) as well as other Federal agencies. Some data bases or surveys could be listed under more than one agency. Federal agencies often jointly develop data, but produce reports that reflect differing agency missions. For example, the Current Population Survey (CPS) is sponsored by the Bureau of Labor Statistics (BLS), and fielded by the U.S. Census Bureau. Reports based on CPS data and issued by the two agencies differ. BLS reports focus on employment and labor force topics, while U.S. Census Bureau reports focus on living arrangements.  Get the report here: 

http://www.agingstats.gov/agingstatsdotnet/Main_Site/Data/2009_Documents/Final_DSOA2009_508.pdf

California Supreme Court rejects appeal of Joey Bishop estate

The California Supreme Court this week rejected a Jewish organization’s appeal against the estate of Joey Bishop, the late entertainer and member of the “Rat Pack.” But the legal battle over his fortune isn’t over yet, an attorney for the Newport Beach Chabad Center said Friday.  The center filed several lawsuits and claims against Bishop’s estate, alleging that the entertainer’s advisors and live-in caretaker blocked his final wishes to have part of his estate go toward setting up a charity for special-needs children in Orange County. A longtime resident of Newport Beach, Bishop died Oct. 17, 2007, at his Lido Isle home at the age of 89.  The court declined to hear the case based on technical reasons, and did not address the merits of Chabad’s case, attorney Bob Weinberg, who represents Chabad, said Friday.

“Mr. Bishop was the victim of elder abuse. The lawyers and accountant and the housekeeper got Mr. Bishop’s money despite Mr. Bishop’s repeated statements that he wished the bulk of his estate to go to charities run by Chabad,” Weinberg said. “The court did not ever address nor reject the truth of these contentions.”  Chabad is still weighing its legal options, but the fight is far from over, Weinberg said.

In a written statement released Thursday through her attorneys after the court had made its ruling, Bishop’s live-in girlfriend and caretaker, Nora Garibotti, blasted Newport Beach Chabad Rabbi Reuven Mintz.

Read more:  http://www.dailypilot.com/articles/2010/01/15/entertainment/dpt-bishop011610.txt

Upcoming: Aging in America 2010 Conference

March 15-19 in Chicago

• Register by Jan. 31 and save with early-bird rates. Register now.
• Senior Centers: Join us on March 14 for a special program! Find out more.

With over 3,500 attendees, Aging in America is the largest gathering of professionals from the fields of aging, health care, and education. Sponsored by NCOA and the American Society on Aging, the conference offers:

• More than 600 educational sessions
• Special events for senior centers
• Networking opportunities
• Renowned keynote speakers
• An expo featuring cutting-edge products and services
• Awards ceremonies, and more!

Explore the conference.