Elder Law Prof Blog

Ciao to the Elder Law Prof Blog

Readers,

Today marks my final day as a regular contributor and editor of the Elder Law Prof Blog.   Since I started the Blog ten years ago (May 2005), many things have changed in the practice and teaching of elder law, but one constant has been the commitment of those of us in academia and of practitioners to advocating for and, when necessary, litigating in behalf of the older persons and those with disabilities and special needs to protect their rights.  During those ten years, the lay press has finally become aware that aging societies must change their infrastructure and outlook to accommodate the needs, and special contributions and abilities, of our seniors.  I'm retired now from full time teaching; next month,  I will be moving on to a new Blog, writing in behalf of the elder and special needs firm of Long Reher & Hanson.,   I will continue to edit the NAELA eBulletin and the Thomsen-West treatise Advising the Elderly Client, and I will continue to work on issues involving international guardianship law and practice.   Mostly, though, I will be taking care of my garden and producing my art, which has become a much-loved second career.

I leave the Blog in the capable hands of Becky Morgan and Katherine Pearson.   Thanks to everyone who has contributed to the success of this blog for so many years.

    --AKD

Long Island "Elder Law" Attorney Pleads Guilty to Stealing $797K from Clients

On June 23, 2015, Martha Brosius, a "retired" attorney who once held herself out as an "elder law attorney," pled guilty in New York to stealing $797,322 from clients.  In one alleged instance of breach of fiduciary duties and embezzlement, she was the court-appointed guardian for a 77-year-old disabled man.  It was alleged she used client funds to pay office, payroll and personal expenses. 

The mother of two minor-aged children and the wife of a district attorney, Brosius is scheduled to be sentenced in August.  According to The Long Island Press, the special prosecutor has sought a sentence of between six to eighteen years plus restitution; the defense counsel says some moneys have already been repaid.

California Court Says Law Permitting Nursing Homes to "Make Routine Decisions for Incapacitated Residents" Is Unconstitutional

On June 24, 2015, the Superior Court for the State of California, County of Alameda, Judge Evelio Grillo presiding, issued a mandamus in a court suit filed in 2013 by California Advocates for Nursing Home Reform (CANHR).  Lots of interesting and important issues here, including:

• the finding that CANHR, a nonprofit agency "dedicated to improving the quality of care for California's nursing home residents," has standing to bring a citizen action to challenge the reliance by nursing homes on California law to permit them to make decisions "for" incapacitated residents who do not have court appointed agents, family or other surrogate decision makers;
• the conclusion that the California law in question, Calif. Health & Safety Code Section 1418.8,  is unconstitutional, both facially and as applied;
• the recognition that the mandate is necessary, even though it will require major changes in how care facilities operate in the daily care of patients.

The 44 page opinion concludes:

"The court is aware that this statute was the Legislature's attempt to deal with a very difficult and significant problem of how to provide timely and effective medical treatment to patients in skilled nursing facilities without delays that were often happening when a petition had to be filed in probate court.  The court acknowledges that this order will likely create problems in how many skilled nursing facilities currently operate....  The court has considered this burden and weighed it against the due process concerns, and finds that the due process rights of these patients is more compelling.  The stakes are simply too high to hold otherwise. Any error in these situations has the possibility of depriving a patient of his or her right to make medical decisions about his or her own life that may result in significant consequences, including death.  A patient may not only lose the ability to make his or her health decisions, but also to manage his or her own finances, determine his or her visitors, and the ability to leave the facility."  

Congratulations to the hard-working advocates at CANHR, and particularly to Golden Gate Law Professor Mort P. Cohen,  who brought the action on behalf of CNHR and several nursing home residents.  Here is a link to the full opinion in CANHR v. Chapman, Case No. RG13700100. Here is a press release from CANHR.

In Divorce of 90+ Year Olds, Nebraska High Court Confirms Award of Alimony to Pay Nursing Home Fees

In Binder v, Binder, decided June 26, 2015, the Nebraska Supreme Court affirmed an award against the husband for alimony in the amount of $3,200 per month. This was the amount necessary to cover the wife's balance due each month for her nursing home care.  The divorcing couple, each in their mid 90s, had been married for 32 years, a second marriage for both.  Married in their 60s, they had no children together. The husband had at least one child from a prior marriage; his son leased the husband's farmland for more than 25 years to continue operations.

The husband argued that the alimony award, exceeding his own $2,800/mo income from Social Security and rental of his farming property, was an abuse of discretion as it lowered his income below "poverty thresholds" set by state guidelines for child support awards.  The Court ruled, however, that in the absence of minor children, the guidelines were inapplicable. Nonetheless, the Court also addressed the "reasonableness" of the award and concluded:

In reviewing an alimony award, an appellate court does not decide whether it would have awarded the same amount of alimony as the trial court. Instead it decides whether the trial court's award is untenable such as to deprive a party of a substantial right or just result.  The main purpose of alimony is to assist a former spouse for a period necessary for that individual to secure his or her own means of support. Reasonableness is the ultimate criterion.

 

Applying these factors, we cannot say that the amount of alimony is an abuse of discretion. Glenn sought to dissolve his nearly 32–year marriage to Laura after she began incurring expenses for essential nursing home care that are well beyond her means. Laura did not work outside the home during the marriage, she is not employed now, and there is no evidence that she has untapped earning capacity. Similarly, Glenn is retired and has no wage income. But while Laura has exhausted nearly all her assets, Glenn has the power to dispose of more than 200 acres of farmland. The land is not irrelevant to alimony even though it is Glenn's premarital property. A court may consider all of the property owned by the parties—marital and separate–in decreeing alimony. 

 

As to disputes over matters such as Laura's contributions to the marriage, we note that the district court was in the best position to judge the witness' credibility. Although our review is de novo, if credible evidence is in conflict on a material issue of fact, an appellate court considers and may give weight to the circumstance that the trial judge heard and observed the witnesses and accepted one version of the facts than another. This rule is particularly apt here because both Laura and Glenn had some trouble testifying and the record does not show to what extent their difficulties were cognitive, auditory, or other.

In reading the decision, I'm struck by questions of what -- or even who -- was driving the divorce, and to what extent the parties' decisions were affected by Medicaid eligibility issues.  For more history, as well as comments by the husband's attorney, see "Retired Farmer Must Pay More in Alimony Than Monthly Income," in the Omaha World-Herald.

5-4: US Supreme Court Holds States Must License and Recognize Same Sex Marriages

Relying on the 14th Amendment, in a 5-4 ruling, the U.S. Supreme Court ruled that states must license marriages --  and recognize them as valid marriages -- for same sex couples.  Justice Kennedy wrote the opinion for the majority; Chief Justice Roberts authored a dissent.

Here's a link to the Supreme Court's full opinion in Obergefell v. Hodges, released today, June 26, 2015.  Interestingly, June 26 has also hosted past landmark rulings affecting marriage rights.

UPDATE:  in watching the evening news tonight, I was struck by the numbers of couples with grey hair celebrating the Supreme Court's decision. For the moving story of Jim Obergefell, the lead plaintiff, see this People profile.  For commentary on how the most recent Supreme Court ruling, on top of the Windsor case, affects "older" same sex couples, see this blog entry from Justice in Aging. 

Florida Appellate Court Reverses Conviction on Financial Exploitation of Elder

On June 24, 2015, a Florida intermediate appellate court reversed the 2013 conviction of Tyrone Javallena for "financial exploitation of an elderly person or disabled adult," ruling that there was no evidence the defendant in question, who was the husband of a financial advisor for a 94-year-old woman who made late-in-life changes to her estate plan benefitting the couple, had the requisite knowledge of any plan to exploit.  In Javallena v. State, the 4th DCA ruled:

The [elderly woman's estate] documents were amended so that, ultimately, the defendant and his wife were residual beneficiaries of the estate. The defendant and his wife served as witnesses to Teris' execution of some of the amendments, and at some point in time, his wife became aware of the substance of the amendments. However, there was no evidence that the defendant, who also chauffeured Teris on errands, had any knowledge of a plan to exploit the victim. As for Teris' mental capacity at the time she executed the amendments to her estate documents, there was conflicting evidence before the jury.

 

On appeal, the defendant argues that his conviction under a principals theory constituted error as there was no evidence he participated in the exploitation. We agree.

 

"To convict under a principals theory, the State is required to prove that the defendant had a conscious intent that the criminal act be done and . . . the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually commit or attempt to commit the crime."Hall v. State, 100 So. 3d 288, 289 (Fla. 4th DCA 2012) (citation and internal quotation marks omitted).

The original conviction of Javallena and his wife in 2013 was high profile news, in part because of the estate in question -- referred to in the appellate opinion as "vast" -- was reported to be $10 million.  No word on the status of any appeal on the separate conviction of Javallena's wife. 

King v. Burwell: USSC Rules Tax Credits Apply to Federal Exchanges

Recognizing that "tax credits" were a key component of health care reform enacted by Congress, six justices of the Supreme Court, led by Chief Justice Roberts, upheld application of the credits to federal exchanges, despite the statute's moments of "inartful drafting." Here is the final paragraph of the majority's surprisingly decisive opinion, issued on June 25, 2015: 

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.

Here is the link to the Supreme Court's full opinion, including Justice Scalia's wrathful dissent. 

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ABA Journal: Delaware is First State to Grant Access to Digital Assets for Fiduciaries

From the July issue of the ABA Journal, news that "Delaware Leads the Way in Adopting Legislation Allowing Estate Executors Access to Online Accounts."   The article details the use of model legislation in permitting "Fiduciary Access to Digital Assets," and related or pending legislation in other states. 

Hat tip to Professor Laurel Terry -- visiting in Hawaii -- for being the first to send this our way! 

Husband's "Constant Kissing" of Wife in Care Home Leads to Court

One of our readers in England sent an item from The Independent, about a dispute between a husband and a publically-operated care home where his wife lives:

An 87-year-old man is taking Derby City Council to court after being told he must stop "constantly" kissing his wife, who has dementia, in order to continue visiting. Thomas Middleton said he has "lost the will to live" after care home staff told him to stop "constantly" kissing his wife Joan, 84, when he visits.

 

Mr Middleton has been made to sign an eight-point agreement to continue seeing her, which says he can only kiss his wife of 67 years once on arrival and once on departure. Mr Middleton’s daily two-hour visits are supervised by staff after a court in 2012 ruled that his wife lacked the capacity to make decisions on her needs.

 

The rules came after a review claimed he was "constantly kissing, pulling and poking his wife, which she protests about." The review also said Mr Middleton became "nastier and nastier" if she did not respond to him. Care home staff reported feeling intimidated by Mr Middleton, while there were also concerns that he would not return his wife if she were allowed a visit home.

 

Mr Middleton disputes this criticism as inaccurate: "I’ve done nothing to my wife. I love her so much. I don’t want to leave her."

In sending us this piece, our reader commented about the troubling fact that this matter has degenerated to the point where parties are going to court, noting the similarity in theme with the Rayhons case in Iowa. 

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Agenda & Issues Framed for July 2015 White House Conference on Aging

There are four overarching themes for topics deemed critical to elders' well-being to be discussed at the White House Conference on Aging in July 2015.  The planned themes are:  healthy aging, retirement security, long-term supports and services, and elder justice.  Here is an overview, pointing to articles used to create an agenda, from Robert Hudson, Editor-in-Chief of the Public Policy & Aging Report for 2015. 

A History of America's First Cancer Hospital: Castle on the Park

On the PRX radio program 99% Invisible, an episode caught my attention over the weekend (midnight driving, listening to satellite radio again...).  Castle on the Park is the story of the nation's first hospital devoted solely to the treatment of cancer, built in 1887 as a veritable castle on Central Park West in NYC. 

The building’s fairytale appearance, it turns out, wasn’t unusual for hospitals of the time. These facilities were built like  aristocratic mansions, with high walls, gatehouses, elaborate entries, and sometimes turrets, as a way of enticing wealthy patients.

In the late 1800s, hospitals were charitable institutions run by philanthropists, where poor people went for care. The wealthy mostly received care at home. Architect Charles Haight hoped the luxurious design of the New York Cancer Hospital would be a lure for paying customers.

Some aspects of the facility were cutting edge and influential, including the notion that to avoid infections, hospitals should eliminate corners in rooms that would be difficult to clean, while other innovations were, perhaps, ahead of their time, including the decision to use radium for cancer treatment.

It wasn’t until the 1930s or that surgery improved and chemotherapy and other organized radiation treatments made cancer care very lucrative. In 1939, the cancer hospital left 455 Central Park West for the Upper East Side, where it  became Memorial Sloan Kettering, which is now known as one of the best hospitals for cancer treatment in the U.S.

The original castle-like structure became a nursing home -- a notorious one -- and eventually its doors were closed.  However, in more evidence that everything comes full circle, especially in New York City, the location has been turned into luxury condos.  As PRX radio's Roman Mars and Jessica Miller conclude, "Finally, after a hundred years of imitating upscale real estate, the castle on the park finally is actually what its always wanted to be: a nice place for rich people." 

You can listen to the more detailed radio story, or read it, with pictures, here.   

Pennsylvania AG's Suit vs. Debt Collectors Details Alleged Misuse of Filial Law

As we posted earlier, the Pennsylvania AG recently announced a civil suit seeking to put an end to one debt collector's manner of using Pennsylvania's filial support law to collect certain medical debts. In the petition filed (on May 29, 2015) in Commonwealth of Pennsylvania v. James A. Havassy et al., in the Commonwealth Court of Pennsylvania (Case No.296 M.D. 2015), the AG alleges:

[Paragraph] 11. The Commonwealth has received multiple complaints from Pennsylvania consumers about some of the debt collection techniques employed by the Hamilton Law Group, P.C. and Defendant Havassy.

 

a. Consumer 1 is an adult woman who claims that she and her husband have received collection notices from the Defendants indicating that they are responsible for their son’s $366.77 debt owed to an anesthesia practice; her son is an adult and has his own health insurance, and Consumer 1 did not co-sign any paperwork that would leave them financially responsible.

 

b. Consumer 2 is an adult male who claims that the Defendants are attempting to collect a $148.89 debt for dental services provided to his mother and adult sister.

 

c. Consumer 3 is an adult male who claims that the Defendants are attempting to collect a $510.79 debt from him for services which were provided to his father by a cardiology practice.

 

d. Consumer 4 claims that the Defendants attempted to collect a healthcare debt for services that were provided to her adult son;  Consumer 4 also complains that the Defendants have negatively marked her credit profile based on this debt.

 

e. Consumer 5 claims that the Defendants are attempting to collect a $1,751.68 debt incurred by her adult daughter for services rendered by a cardiology practice; Consumer 5 also claims that the Defendants have negatively marked her credit profile based on this debt.

 

f. Consumer 6 claims that the Defendants are holding her and her husband responsible for the healthcare debts of their deceased son in the amount of $2,040.66, who was an adult when he incurred the debts; Consumer 6 is making payments to the Defendants for their son’s debt.

Pennsylvania's law (23 Pa CSA Sections 4601-4606), which was moved on the books from welfare session laws to the Domestic Relations Code, with some minor modifications, as part of a codification step in 2005,  is hardly a model of precision about what items fall within the obligation of an identified family member to "care for and maintain or financially assist" the "indigent person." 

From my own past research of the history of cases in Pennsylvania, I can say the use of the law to collect non-facility-based healthcare debts is, at a minimum, unusual, and even more problematic in the absence of evidence (or at least allegations) of indigency on the part of the primary consumer. Further, according to one of the AG's allegations above, it appears that collection efforts may have been made against family members not identified as even "possible" obligors under the statute, namely siblings.

The full petition is also now available on Westlaw at 2015 WL 3792672.  No responsive pleadings have been filed yet by the named defendants and in fact the petition may not have been served as of today's date. Remember, allegations are just that -- allegations (a bit of irony, perhaps, given that the AG is alleging that the debt collectors were making improper allegations of liability).  The petition available on Westlaw does not include copies of any "debt collection letters" allegedly used. 

Pensions at Heart of Greek Debt Crisis

As negotiations over the Greek debt crisis continue, with another crisis point looming this week, much of the attention is on the issue of pension reform, with Eurozone critics demanding cuts in benefits and pointing to early "full retirement" and payments that rival real wages.  However, as several accounts help to explain, individuals' public pensions are often important to entire family structures, especially as younger Greek workers are unable to find jobs with adequate wages, and unemployment compensation is unavailable. 

For more see Bloomberg News: Unwed Daughters in Greece Catch "Time Bomb" in Pension Overhaul

From National Public Radio: Greece Pledges New Proposal to Resolve Debt Crisis

Daily Mail:  Alex Brummer:  Could This Weekend be a Lehman Moment for Greece?  

Symposium Issue Responds to Hartog's "Someday All This Will Be Yours"

The Spring 2015 issue of the ABA publication Law & Social Inquiry has a great symposium review section offering a broad array of essays, commenting on Hendrik Hartog's important book Someday All this Will Be Yours: A History of Inheritance and Old Age (Harvard University Press: 2012). 

The impressive list of contributors includes:

• Naomi Cahn (George Washington Law), Continuity and Caregiving: Comments on Someday All This Will Be Yours
• Mary Anne Case (University of Chicago Law), When Someday is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid
• Nina A. Kohn (Syracuse Law), The Nasty Business of Aging
• Dorothy E. Roberts (University of Pennsylvania Law), Race, Care Work, and the Private Law of Inheritance

Plus, historian Hendrik Hartog provides his own commentary and response! 

• Hendrik Hartog (Princeton), Somedays I Have Second Thoughts.

Suffice it to say if you appreciated Hartog's book, you will thoroughly enjoy his additional musings on how he came to write it and what it might mean for the future. 

The comments are engaging and relatively brief -- but should still keep you busy on a summer weekend.

What Do We (and Should We) Mean by "Assisted Living?"

Earlier this week I recommended Atul Gawande's book, Being Mortal: Medicine and What Matters in the End,  and I offered an excerpt from his discussion of how doctors are impacted by practical limits on their goals as solvers of problems.  But the book is about more than just medicine. Another compelling chapter traces attempts to avoid "nursing homes" and the once cutting edge trend of "assisted living" as an alternative:

The idea spread astoundingly quickly.  Around 1990, based on [Keren Brown] Wilson's successes, Oregon launched an initiative to encourage the building of more homes like hers.  Wilson worked with her husband to replicate their model and to help others do the same.  They found a ready market. People proved willing to pay considerable sums to avoid ending up in a nursing home, and several states agreed to cover the costs for poor elders.

 

Not long after that, Wilson went to Wall Street for capital, to build more places.  Her company, Assisted Living Concepts, went public.  Others sparing up with names like Sunrise, Atria, Sterling, and Karrington, and assisted living became the fastest growing form of senior housing in the country.  By 2000, Wilson had expanded her company from fewer than a hundred employees to more than three thousand.  It operated 184 residents in eighteen states.  By 2010, the number of people in assisted living was approaching the number in nursing homes. 

 

But a distressing thing happened along the way.  The concept of assisted living became so popular that developers began slapping the name on just about anything.  The idea mutated from a radical alternative to nursing homes into a menagerie of watered-down versions with fewer services.  Wilson testified before Congress and spoke across the country about her increasing alarm at the way the ideas was evolving....

For more, see Chapter 4 of Being Mortal, titled "Assistance." The other intriguingly-named chapters are "The Independent Self," Things Fall Apart," "Dependence," "A Better Life," "A Better Life," "Letting Go," "Hard Conversations," and "Courage."

California Clarifies Nature of "Takings" Actionable Under Elder Abuse Law

In 2014, the California Court of Appeal issued a decision recognizing broad application of California's Elder Abuse laws to contract-related disputes.  In Bounds v. Superior Court, the appellate court set the stage for the important ruling:

Bounds, an 88–year–old widow allegedly suffering from Alzheimer's disease, alleges in her cross-complaint that for approximately six months, Real Parties in Interest Gerry Mayer (Mayer), Joseph Sojka (Sojka), and their associated businesses entities (KMA Group, LLC, Kopykake Enterprises, and Sojka–Nikkel Commercial Realty Group) engaged in abusive conduct, resulting in her signing, among other documents, escrow instructions authorizing the sale of real property owned by the Trust. Because escrow was cancelled, the Trust retains title to, and Bounds remains in possession of, the property. However, petitioners allege that the existence of the escrow instructions significantly impairs their right to sell the property at fair market value or to use it to secure a loan on favorable terms.

 

These alleged facts raise an issue of first impression: whether to allege a “taking” of a property right under the [California Elder Abuse] Act, it is sufficient to plead that an elder has entered into an unconsummated agreement which, in effect, significantly impairs the value of the elder's property, or whether the Act requires that the agreement have been performed and title have been conveyed.....

 

As explained more fully below, we conclude that because property rights include, among other things, the right to use and sell property ... petitioners' allegations that Bounds entered into an executor agreement which significantly impaired the value of the property owned by the Trust adequately pleads a "taking" -- that is, adequately pleads that Bounds has been "deprived of [a] property right .... by means of an agreement," within the meaning of [California law] section 15610.30(c). 

 

Therefore the appellate court permitted the case to go forward against the alleged abusers, who were alleged to have frightened the aging Bounds into selling property at a bargain price.

 

More recently, Sara Colon, one of the lawyers represented the elderly Ms. Bounds, and Catherine Eschbach, a law student at Pepperdine Law School, collaborated on an article for the Los Angeles Lawyer magazine, published in April 2015.  In Out of Bounds, they explain the significance of the Bounds case, including its application in the context of predatory lending schemes. 

Northern Ireland Advocate Calls for Overhaul of Adult Social Care Legislation

During the last two years I have had the fascinating opportunity to work on two major studies of laws and government policies affecting older persons and their families in Northern Ireland, studies initiated by the Commissioner for Older People for Northern Ireland (COPNI). The earlier study looked at safeguarding systems.  Now the second study has been made public, with Northern Ireland Commissioner Claire Keatinge using the work to recommend major reforms of Adult Social Care laws in her country. The formal launch of her "call for change" occurred on June 16 in Belfast. 

Two of my four research colleagues, Dr. Joe Duffy (far left, who led the research team) and Dr. Gavin Davidson, (far right) both of Queens University Belfast, were present for the launch, with Joe giving introductory remarks to the audience of government officials and community stakeholders.  The fourth member of our team is Dr. Subhajit Basu of the University of Leeds in England.  Our research evaluated government policies and law in more than ten nations, looking for legal trends, best practices and cutting edge social care programs.

Significantly, in addition to recommending a comprehensive legislative framework and funding structure to coordinate services for all adults in need of assistance, one key recommendation announced by Commissioner Keatinge (left center above) and highlighted in our investigative report, is to implement a "Support Visit" for any interested person age 75 years or older, by an appropriately trained health and social care worker.  This recommendation, which draws upon Denmark's successful experience with a "preventative home visitor" program, would create an opportunity for a psychosocial dialogue aimed at advance planning.  The goal is to help individuals and family members anticipate needs in the event of functional impairment, thus reducing the need for crisis planning. 

I've become a big fan of Commissioner Keatinge; she is clear, creative, realistic, and determined to see Northern Ireland become a world leader in recognizing not just the needs but the contributions made by older adults.  She does so from a platform of respecting older persons' contributions, citing research to demonstrate that over the next several decades, older adults will contribute more than £25 billion to the Northern Ireland economy through formal work, volunteering, and their roles as caretakers for both adults and children.

It had been an honor for me to work on this social care reform project.  The work has given me -- and Dickinson Law students serving as research assistants, Ryan Givens and Tucker Anderson (who used his ability to speak and translate Danish to help in our field research) -- important new perspectives on proactive ways to identify and address potential needs triggered by age-related changes in demographics.  Frankly, in the U.S. we spend far more time (and arguably too much time) on issues of medical care.  This report is a reminder that many health-care crises could be avoided or mitigated through more proactive implementation of social care networks.

For more on the Duffy, Davidson, Basu, Pearson report (June 2015), see Review of Legislation & Policy Guidance Relating to Adult Social Care in Northern Ireland.

For more on Commissioner Claire Keatinge's call for reform, see Commissioner Calls for Overhaul of Adult Social Care.

See here, for more on Denmark's approaches to services, communication and programming for older people.

Special thanks to Ryan and Tucker for their research, proofreading, editing and translation skills! 

Siblings' Dispute Over Filial Support Finds Way to Bankruptcy Court

Last fall, I blogged about In re Skinner, a case in which one son was trying to prevent a brother from obtaining a discharge in bankruptcy court of a "filial support" judgment to a long-term care facility. Both brothers had been sued, but one brother, Thomas, had defaulted on the suit, resulting in a default judgment as to his liability.  The bankruptcy court concluded that Brother William lacked standing" to prevent Brother Thomas' discharge of debt to an assisted living facility for care of their mother. 

In May, 2015 the United States District Court for the Eastern District of Pennsylvania affirmed the bankruptcy court's dismissal of the adversary proceeding, concluding that "William Skinner has not adequately alleged that he is a bankruptcy creditor of Thomas Skinner. He therefore lacks standing to bring an action challenging the dischargeability of Thomas Skinner's debts." 

The additional allegations described in the District Court opinion -- which are reminiscent of the allegations of misuse of Powers of Attorney in Presbyterian Medical Center v. Budd (Pa. Super. 2013) -- demonstrate the complicated nature of filial support suits for family members.  This is especially true in Pennsylvania where courts seem to be treating claims of statutory liability as "joint and several" in nature, and not proportional based on fault.  For the latest see In re Skinner, 2015 WL 3400943, (E.D. Pa. May 27, 2015).

UPDATE October 2015:   On June 30 2015,  William Skinner filed an appeal to the Third Circuit. As of early October, briefing is underway.

On the Importance of "Being Mortal"

During the last six months, the book most often recommended to me has been Being Mortal, written by Boston surgeon (he's more than that...) Atul Gawande.  Now I too can recommend this book to others.

What is unusual about this book is that it reminds us how deeply doctors themselves are affected by the strengths and limits of their profession, while also helping everyone think more deeply about key issues of living and dying.  The author is a candid, persuasive writer.  Early in the book, Dr. Gawande explains:

"You become a doctor for what you imagine to be the satisfaction of the work, and that turns out to be the satisfaction of competence.  It is a deep satisfaction very much like the one that a carpenter experiences in restoring a fragile antique chest or that a science teacher experiences in bringing a fifth grader to that sudden, mind-shifting recognition of what atoms are.  It comes partly from being helpful to others.  But it also comes from being technically skilled and able to solve difficult, intricate problems.   Your competence give you a secure sense of identity.  For a clinician, therefore, nothing is more threatening to who you think you are than a patient with a problem you cannot solve.

 

There's no escaping the tragedy of life, which is that we are all aging from the day we are born.  One may even come to understand and accept this fact.  My dead and dying patients don't haunt my dreams anymore.  But that's not the same as saying one knows how to cope with what cannot be mended.  I am in a profession that has succeeded because of its ability to fix.  If your problem is fixable, we know just what to do.  But if it's not?  The fact that we have no adequate answers to this question is troubling and has caused callousness, inhumanity, and extraordinary suffering. 

 

This experiment of making mortality a medical experiment is just decades old.  It is young.  And the evidence is it is failing...."

Pretty potent stuff, right? 

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Forty-nine years ago...

The New York Times' "On this Day" squib reminded us today: 

"On June 13, 1966, the Supreme Court issued its landmark Miranda vs. Arizona decision, ruling that criminal suspects must be informed of their constitutional rights prior to questioning by police."

That triggered memories, as the day the landmark decision first became known in Arizona, the father of one of my friends offered everyone in the neighborhood a glass of champagne, even us kids.  At the time I did not fully appreciate the reason.  It was only years later that I put it together that the celebrant was John P. Flynn, the lawyer who successfully argued the Miranda case before the U.S. Supreme Court.

Even more years later, in the 2000 Supreme Court decision of Dickerson v. U.S., another man from that same Phoenix, Arizona neighborhood would confirm the importance of "Miranda warnings" as an accepted mainstay of protection for individuals suspected of crimes.  Chief Justice William H. Rehnquist did not share the legal or political philosophies that generated the original ruling, but he could be persuaded to respect the role of stare decisis. I have often been bemused by the fact that John Flynn, a bold advocate and life-long Democrat,  had once celebrated his biggest victory with the children of the neighborhood, including the children of a future Supreme Court Justice, well known for his conservatism.  Phoenix, especially the legal community, was a very small town in those days.

My trip down memory lane took me to a colorful account of John P. Flynn's life.  It is the story of a creative and talented lawyer, from an era much more tolerant of personal flaws. Read "Remembering John Flynn" by his one-time law partner Tom Galbraith.