Elder Law Prof Blog

April Fools? (Unfortunately, Not So)

When I ask real or prospective law students what television programs they watch, I often get two answers:  "The Big Bang" or "Suits."  I have to admit I love to use Big Bang's "roommate contract" for my contracts class examples.  But, Suits is a bit more problematic -- until now.

The key character in Suits is "Mike Ross," a college dropout, and the back story is that he's brilliant, with a superb memory, and stumbled into being a "lawyer" after a life of petty crime that somehow included taking the LSAT exam for others.  I would like to think that the appeal of the program is the law, but I am realistic enough to suspect the "charm" is the idea that you can succeed in law without knowing the law, indeed without being a "real" lawyer. A little fantasy, right?

Now we have a report -- and I wish this wasn't true -- from my own state of Pennsylvania, of a 45-year-old woman who allegedly posed for 10 years as an estate planning lawyer, even making partner in a law firm, who may have faked her attendance at a specific law school.  In fact, she may have faked everything that should have happened afterward, such as being licensed to practice law.  

According to news reports, the individual has been charged with crimes.  To follow her defense, and the developing details, see here, here, and here. 

Massachusetts Federal Court Calls for Clearer Rules to Permit Sound Planning for Special Needs

In DeCambre v. Brookline Housing Authority, decided by a federal district court in Massachusetts on March 25, the issue was whether a disabled adult living in Section 8 housing becomes ineligible for the housing subsidy because of disbursements to her from a special needs trust, funded as the result of a personal injury settlement. 

Although the court affirmed the Bureau of Hearings and Appeal ruling on her income and expenses, thus disqualifying her for public housing benefits, the court also called for clearer federal guidelines to permit better planning for needy beneficiaries: 

"[This case demonstrates the serious problem that beneficiaries of irrevocable trusts face; in particular, those that seek to pour lump-sum settlement funds into irrevocable trusts. But until the rules and regulations are clarified, public housing authorities should provide clear guidance and instruction for potential tenants with regard to their financial planning and spending. A more thorough and thoughtful analysis is required by public housing authorities when determining Section 8 eligibility, until further guidance is provided by the HUD."

Educating the Public about Powers of Attorney (With the Help of Friends Across the Pond)

As we have described often on this Blog, there is a fair degree of concern about whether members of the public understand the potential significance of a  Power of Attorney before they sign the document.  Apparently the U.S. is not alone in this concern. 

Recently, Northern Ireland's Law Society (for comparison purposes, an organization which somewhat of a hybrid of the American Bar Association and a state's licensing board or disciplinary authority), issued an interesting pamphlet about "enduring powers of attorney" or EPAs, to serve as a guide for members of the public, using a Q & A format. EPAs are similar to our durable POAs, and, of course, their utility depends on being executed in advance of any need.  Topics addressed include: 

• Do I lose control when I sign an EPA?
• Is this just a note of my wishes?
• Do I need an EPA if I have a will?
• If I don't have investments or property is there any point?
• What if all my assets are jointly owned?
• Can I have more than one attorney [agent]?
• Who should I appoint as my attorney [agent]?
• What power does an attorney [agent] have?
• What responsibilities does my attorney [agent] have?
• Is my attorney [agent] paid for work undertaken?
• Can I change my mind and revoke an EPA?
• If I recover my capacity, who is in charge of my affairs?
• Is it expensive to make an EPA? 

You are curious about the answers, aren't you!  For the cleanly written answers to these questions, access the PDF from the Law Society here.   Thank you to my Dickinson Law colleague Laurel Terry for the pointer.

Related articles

Power-Less of Attorney?

Power of Attorney: Now That the Law Has Changed. . . - Mateya Law Firm

Texas Durable Power of Attorney

Catching Up with the U.S. Senate Special Committee on Aging

As Maryland reader Dennis Brezina (and legislative assistant to Wisconsin Senator Gaylord Nelson) helpfully reminded me, with the new Congress there has been a changing of the leadership of the Senate Special Committee on Aging.  The new Chair and Ranking Member of the Committee are, respectively,  Senators Susan Collins, (R-Maine) and Claire McCaskill (D-Missouri).

This committee maintains a  "fraud hotline," for reporting abuse, including financial exploitation, affecting vulnerable seniors.  The number is 1-855-303-9470.  For more on the Committee's interest in this topic, reports from recent hearings are available on the Committee website. 

Thanks, Dennis!

The Impact of Play (It's Not Just for Kids)

While driving home from the grocery recently, I happened to catch "Press Play," a TED Radio Hour broadcast on the importance of play. It was such an interesting program that I ended up taking my groceries for another couple of spins around the block so that I wouldn't miss a segment!  

One interview was with researcher Dr. Stuart Brown, who described his early work with (and about) criminals, including at least one mass murderer.  While no single factor accounted for behavior, he noticed that in some of the worst histories, there was a distinct lack of opportunities for childhood imagination and healthy play.  He brought this forward into research with the general population, with observations about the role of play throughout life, even for persons with deep dementia. He and other researchers on the program were convincing, to wit, that play, involving pure fun and engagement with others, stimulates the brain in important ways.

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The Importance of Memory and Storytelling: Looking Back at Integration in the North

Imagine publishing your first book at age 86. 

Leonard M. Alexander, in conjunction with his son, my good friend and former Dickinson School of Law faculty colleague, Peter Alexander, is the author of It Takes A Village: The Integration of the Hillburn School System. The brief, inspiring book provides another timely look at the challenges of desegregation and demonstrates the important roles played by persistent local leaders in moving towards integration. Leonard Alexander also reminds us that opposition to change was not solely a "southern" problem:

"Hillburn, New York, has always been a simple, quiet community.  Part of its charm was the appearance that people of different races lived in harmony. The harmony, unfortunately, was attributable only to the social norms of the time.  The white men in the village controlled everything -- jobs, banks, land -- and the colored people, as we were known and referred to, would be taken care of as along as we stayed in our place.

 

'Our place' meant we should not be too vocal or too uppity.  Also, 'our place' meant that we would live on the colored side of town (with the dividing line being Route 17).  'Our place' also meant that we would attend a separate school from the main grammar school in the village.  Since 1889, four years before the village of Hillburn was chartered, the colored children attended grammar school that was set aside for us.  The school was situated alongside a babbling brook and it was known as Brook School.  Unofficially, it was the colored school." 

The book describes the efforts of Leonard Alexander's father, working with others in "the village," to obtain a key NAACP investigation and report in 1931 about the so-called "separate but equal" treatment of the town's two grammar schools. The evidence included the fact that new classroom texts were purchased only for the white school; the white school's old books might then be sent to Brook School.  

Leonard's book is also a testament to the importance of memory and storytelling.  This is the story of multiple generations of the Alexander family's involvement with community action, education and civil rights.  

In reading the book in one sitting, I was intrigued by the role that jobs played in the ability -- or understandable reluctance -- of community members to challenge inequality.  Leonard's father worked for the New York City General Post Office, and that gave him the financial independence from the local factory owners to challenge their "Jim Crow" system. A small, poignant detail suggests the consequences of activism, as a white business owner and politico would attempt to curry favor (and, probably, votes) by passing out candy to local black children, unless he learned their last name was Alexander. 

Congratulations to Leonard Alexander, and to proud son and co-author, Peter. And, by the way, how many of us have parents with "unheard" stories to share? 

NOT Elder Law, But It Is CRIMINAL Law

As reported in the ABA Journal, "A New Jersey lawyer has been sentenced for 10 years in prison for her part in a scheme to steal $3.8 million from 16 elderly victims:"

Prosecutors say the group took control of the finances of their victims by forging a power of attorney or obtaining one under false pretenses. They then added their names to the victims’ bank accounts and transferred the victims’ funds into accounts they controlled. As part of a plea deal with prosecutors, Lieberman has agreed to pay $3 million in restitution and testify against her co-defendants. 

Here are more details.  And here. And here. And here.  And according to one news source, the attorney actually served on the New Jersey Supreme Court's Ethics Committee while already engaged in misusing client funds.  Hat tip to retired New York Attorney Karen Miller, now living in Florida, for sharing a link to the ABA Journal article on this sad set of facts.

How Old Are You? No really, How Old Are You?

 

I thought it fitting to end the week with a recent story from the New York Times.  You know that old saying  that goes something like this "you are only as old as you feel"? Well according to Social Security, a whole bunch of us are a lot older than we are.... The A.P. ran an article on March 16, Flawed Social Security data say 6.5M in US reach age 112. The article notes that the reality is only about 42 people in the world are that old. So what about the other 6.4+ million others?  According to the article, lack of death certificates can be a partial explanation.

But Social Security does not have death records for millions of these people, with the oldest born in 1869, according to a report by the agency's inspector general.

Only 13 of the people are still getting Social Security benefits, the report said. But for others, their Social Security numbers are still active, so a number could be used to report wages, open bank accounts, obtain credit cards or claim fraudulent tax refunds.

The Senate Committee on Homeland Security & Government Affairs held a hearing on  SSA and death records on March 16, 2015. The solution is a bit more complicated than you might think, according to the article. Think about paper records and how time consuming it is to convert them to electronic records.  Social Security is concerned about whether 6.5 million people are alive or not, but  "the inspector general's report did not verify that any of the 6.5 million people are actually dead. Instead, the report assumed they are dead because of their advanced age." An SSA official was quoted as saying "our focus right now is to make sure our data is as accurate and complete as it can be for our current program purpose,... Right now, we're focused on making sure we're paying beneficiaries properly, and that's how we're investing our resources at this time."

Pennsylvania's New Pro Rep Rules Target Financial Accountability for Lawyers, Including Restrictions re Sales of "Investment Products"

New rules supplementing Pennsylvania's Rules for Professional Conduct, adopted by the Pennsylvania Supreme Court in late 2014, are intended to require greater accountability by lawyers for handling of client funds, including sums temporarily deposited in IOLTA accounts.  The rules became effective on March 1, 2015. As we reported on this blog earlier, including here and here, the changes were an important response to disturbing instances of individual attorneys who stole client funds -- in the aggregate amounting to millions of dollars -- that they had purported to "invest" for the clients. 

On March 25, I had the interesting task of serving as a moderator for a meeting hosted by the Elder Law Section of the Pennsylvania Bar Association to explore the implications of the new rules.  Panelists included attorneys Stephen K. Todd and David Fitzsimons who have each served on the Pennsylvania Disciplinary Board. They were involved in either the drafting or implementation stages for the new rules. Also helping to set the stage were two additional panelists, practicing elder law and estate planning attorneys, Linda Anderson from the east side of Pennsylvania and John Payne from the west side of the state. 

The audience included attorneys from a range of practice areas around the state, as well as Pennsylvania Supreme Court Justice Debra Todd.  The dialogue following the panelists' opening remarks was robust, demonstrating support for the increased standards for record-keeping and safe-keeping of property, as well as enhanced powers for the Disciplinary Board to investigate suspected misconduct and demand accountability and disciplinary compliance. 

Many of the comments and questions focused on a single new rule, reportedly the first in the nation, that addresses the role of lawyers with respect to "investment products," defined to include annuity contracts, life insurance contracts, commodities, investment funds, trust funds or securities. 

The key provisions of new Rule 5.8 provide:

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What Does it Mean to Have Special Needs for Purposes of "Special Needs Planning?"

At Dickinson Law this week, we are lucky to have Massachusetts Attorney Stephen Spano visiting and presenting to our students in our "Law and Aging Policy" seminar.

In advance of his appearance and in preparation for his focus on "Special Needs Planning," Stephen Spano, who is board certified as an elder law attorney by the National Elder Law Foundation (NELF) and whose firm concentrates its practice on elder law, estate planning and special needs planning, asked the students to watch two very interesting -- indeed inspiring -- Ted Talk videos. 

Here is his first assignment -- and I look forward to seeing how he uses both videos with our students: 

 

 His second assigned video "homework" is from Aimee Mullins, who talks about "My 12 Pairs of Legs."  

How Well Do You Understand Social Security? Here's a Book to Help.

A new book about Social Security has been getting some buzz since its release last month. Get What's Yours: The Secrets to Maxing Out  Social Security is published by Simon & Schuster and authored by Laurence J. Kotlikoff, Phillip Moeler & Paul Solman. Here is an excerpt from the publisher's website

Learn the secrets to maximizing your Social Security benefits and earn up to thousands of dollars more each year with expert advice that you can’t get anywhere else. Want to know how to navigate the forbidding maze of Social Security and emerge with the highest possible benefits? You could try reading all 2,728 rules of the Social Security system (and the thousands of explanations of these rules), but Kotlikoff, Moeller, and Solman explain Social Security benefits in an easy to understand and user-friendly style. What you don’t know can seriously hurt you: wrong decisions about which Social Security benefits to apply for cost some individual retirees tens of thousands of dollars in lost income every year.  How many retirees or those nearing retirement know about such Social Security options as file and suspend (apply for benefits and then don’t take them)? Or start stop start (start benefits, stop them, then re-start them)? Or—just as important—when and how to use these techniques? ...

The New York Times ran an article about this book on March 13, 2015. The Social Security Maze and Other U.S. Mysteries discusses the book as well as the intricacies of Social Security. Those of us elder law profs who cover Social Security in our classes know how complex it can be.  As the article illustrates, it is more complicated than even we thought.

Given that there are 2,728 core rules and thousands more supplements to them according to the authors, it pays, literally, to seek out a guide...

The book’s success is also, however, symptomatic of something that we take for granted but should actually disgust us: The complexity of our financial lives is so extreme that we must painstakingly manage each and every aspect of it, from government programs to investing to loyalty programs. Mr. Kotlikoff’s game has yielded large winnings for his friends and readers (and several dinners of gratitude), but the fact that gamesmanship is even necessary in the first place with our national safety net is shameful.

The lead author explained how he came to this point "[s]oon, Mr. Kotlikoff was developing a computer model for various payouts from the government program and realized that consumers might actually pay to use it....From that instinct, a service called Maximize My Social Security was born, though it wasn’t easy to do and get it right. 'We had to develop very detailed code, and the whole Social Security rule book is written in geek,” he said. “It’s impossible to understand.'” The article goes on to illustrate some complexity by using as example health savings accounts and discuss why a well-intentioned law has become so complicated.

We all know it is a complicated program, so it's great to have another resource available to help explain everything. The book is available in hard copy or as an e-book either from the publisher or other book sellers.

Are Doctors Failing to Tell Patients of Diagnosis of Alzheimer's? And Why Not?

The Alzheimer's Association's 2015 Facts & Figures Report that many doctors fail to tell patients (or their family members) about a diagnosis of Alzheimer's is getting a lot of attention, including this Morning Edition story. 

Why aren't doctors revealing their diagnoses?  During my work in Northern Ireland on access to justice for older adults, we realized that the doctor's diagnosis is a key opportunity for families to receive early advice about "non-medical" planning, such as arranging for powers of attorney or other arrangements for financial management, while the patient has adequate cognition to help with decision-making.  If communication of the diagnosis is delayed, the window for effective participation in planning may also be lost.

Has Acceptance of Same Sex Marriage Created Opportunities for Recognition of Other "Family Relationships?"

Columbia Law Professors Elizabeth S. Scott and Robert E. Scott have a new article, "From Contract to Status: Collaboration and the Evolution of Novel Family Relationships." They describe the successful movement to achieve marriage rights for LGBT couples as creating potential opportunities for recognition of other legal relationships that do not depend on "traditional" notions of marriage or family, such as "cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists."

In analyzing relationships that may gain greater legal recognition, the authors examine the possible influence of statutory obligations, including Pennsylvania's filial support laws used to impose care obligations on adult children, or more recent statutes granting visitation rights to grandparents:

"Probably the strongest candidate for full family status is the linear family group composed of grandparent(s), parent(s), and child(ren). It is clear that this familiar type of extended family can function satisfactorily to fulfill family functions. Further, the genetic bond among the members, together with well-defined family roles, reinforces already existing norms of commitment and caring. The primary challenge for these extended families may be the creation of networks with other similar families pursue their goals of increasing public support and attaining official family status.More complex multigenerational groups pose a greater challenge because they are less familiar to the public and less likely to be bound by family-commitment norms than are linear family groups. Partly for this reason, regulators may find it more difficult to verify the family functioning of these unconventional multigenerational groups."

The article was published in the Columbia Law Review, March 2015.

How's Your Health?

Ever been asked that question "how's your health?" (or any of the derivative questions, such as "how are you" (to which you typically respond, "fine, thank you and you?") or "how are you feeling?")  You typically respond "fine, thanks", unless you are talking to your doctor, and then you may be more specific. But typically when a person is asked to describe her health, she may not list her chronic conditions that may come with aging. 

Jane Brody's March 2, 2015 blog post on Healthy in a Falling Apart Sort of Way  opens with her relating how, when filling out a medical questionnaire asking her to evaluate her health, she typically checks the box "healthy." After sharing how she really is with the readers, she then turns to a discussion of how health is really measured, quoting some experts that "note that the ability to continue to participate in society might be more important than measured gains in health. The ability to cope with life’s ailments might be more a more important and realistic measure of health than complete recovery."

She then considers modern medicine "[t]he widespread belief that medicine today has the potential to prevent most health problems or detect them early enough for a cure has succeeded in “medicalizing” modern life and raising the costs of medical care to unsustainable levels." She looks at the different theories regarding preventive care, testing and early intervention. She reviews the W.H.O. factors for using health care and ends with advice from one of the experts who suggests  using caution and good judgment when choosing medical care.

So what does it mean to be healthy in 2015?

On Being - With Alzhemier's

On Being, a program broadcast on NPR and via podcast, has an new episode on "Alzheimer's and the Spiritual Terrain of Memory" with many touching moments.  The summary is as follows:

"Alzheimer's disease has been described as 'the great unlearning.' But what does it reveal about the nature of human identity? What remains when memory unravels? Alan Dienstag is a psychologist who has led support groups with early Alzheimer's patients, as well as a writing group he co-designed with the novelist Don DeLillo. He's experienced the early stages of Alzheimer's as a time for giving memories away rather than losing them."

The website offers poems and essays from the writing group.

Aid In Dying Legislation

The New York Times ran an editorial on March 14, 2015 regarding efforts in states to pass aid in dying legislation.  Offering a Choice to the Terminally Ill reports that DC & 15 states are considering such legislation. The editorial describes two recent cases, reviews the opposition, and considers the safeguards provided in the Oregon statute as an example. It also describes situations where doctors provide patients with lethal dosages of medications despite laws to the contrary, noting that "these unregulated practices put patients and doctors on dangerous terrain." Referencing the case of radio host watching her husband who had stopped eating over a period of days, the editorial board says about that case "[h]er inability to help him die humanely is a situation no spouse should have to face."

NYT's Self-Portrait of an Aging Doper

The cutline for the recent New York Times opinion piece on "How I Buy Weed" caught my eye: "Most of us customers are in late middle age. Soon we'll be in knee braces, panting up the stairs to our dealer's apartment."   

Several years ago, a student in my Elder Law course proposed to write his paper on "medical marijuana for seniors."  I was skeptical, and pushed him fairly hard on the law and science.  (I admit I wanted to make sure this wasn't a bit of a hobby topic for him, bridging all of  his upper division paper courses -- I didn't want this paper to be the latest in a series on "Anti-trust implications of marijuana sales," "First Amendment implications of marijuana use," "U.C.C. implications for marijuana sales," etc.)  But my concern was met fairly and the well-written and researched final paper earned an appropriately high grade.  Some time later, I received a request for a job reference for him as our graduate, from an organization in a western state that was advocating medical marijuana.  He got the job. It was the easiest reference I have ever written -- and, by the way, the state in question now has legalized medical-use marijuana.

So it was with bemusement that I read the New York Times article -- and the colorful comments posted in response.  Sometimes it is surprisingly easy to find "elder law" related items for this Blog! 

ABLE webinar

Have you seen the number of articles that have been released about ABLE accounts?   Here's a chance to learn more:  the ABLE National Resource Center has announced a free webinar on ABLE on March 26 from 2-3:30 edt.  This is a collaboration between ARC, National Disability Institute, Autism Speaks, National Down Syndrome Society, and the College Plan Savings Network. According to the website, Understanding ABLE will cover the facets of ABLE, implementation updates and time for Q&A. To register, click here.

NAELA Submits Comments on Proposed VA Regs re Eligibility for Benefits

The National Academy of Elder Law Attorneys (NAELA) recently submitted detailed formal comments to proposed VA rules affecting asset tests for eligibility for Veterans benefits. They begin:

NAELA welcomes the effort to try to make the eligibility criteria for pension and other benefits administered by VA objective and transparent, but we believe that these proposed regulations, if implemented, would cause substantial harm to wartime Veterans, their spouses, and dependents and will not solve the serious issue of unscrupulous organizations taking advantage of potential beneficiaries by selling inappropriate annuities or trusts.

 

In addition, we express the serious concern that the proposed rule’s 3-year look-back period and transfer of assets penalty exceed statutory authority, opening up VA to future litigation and causing additional uncertainty for Veterans and their families.

For the full NAELA submission, see here. 

Can an Attorney for a Nonprofit Disclose Info re Unlawful Diversion of Charitable Assets to Attorney General?

The Pennsylvania Supreme Court has agreed to consider an interesting legal ethics issue:

"When counsel for a nonprofit corporation believes that charitable assets are being unlawfully diverted, may counsel disclose this information to the Attorney General's office, as parens patriae for the public to whom the charity and its counsel owe a fiduciary duty?"

The case?  Well, that is a bit of a mystery, as the parties' names have been redacted, and the factual basis for the petition has been deleted from the publically available record. The court permits amicus briefs by 3/23/15.  If you wade past blank pages 2 through 11 of the Petition for Permission to Appeal, there are a few tantalizing clues about the context on pages 12 through 14.