Elder Law Prof Blog

Friends at the End of Life

Friends are an integral part of the fabric of our lives.  Perhaps the most important time in one's life to have friends is at the end of life, according to an article in the New York Times. The article, Near the End, It's Best to be "Friended" focuses on what has become known as the "unbefriended" elders.  When we think "unbefriended", we think of someone without friends or relatives.  Maybe the person has outlived everyone. But the article offers that "unbefriended" has a much broader meaning: "you can also be unbefriended, even if you do have friends and family, if you are incapacitated and haven’t appointed someone you trust as a health care proxy."  The article cites a study that shows an increase in the number of unbefriended elders and notes the likelihood of a continued increase since the chance of dementia increases with age.

More and more patients who lacked decision-making capacity, had no available surrogates and had not completed an advance directive,” said Martin Smith, director of clinical ethics at the Cleveland Clinic.

The kinds of unrepresented elders might change, too. In the past, many were marginalized — homeless, addicted, mentally ill, estranged. Baby boomers, with higher rates of childlessness and divorce, have smaller and more mobile families, and longer life spans. “They could live a largely mainstream life, but outlive everyone around them..."

The article notes that some states have statutes giving priority order to relatives and, in some instances, others to make health care decisions for those who haven't made a directive.

Twenty-four states and the District of Columbia have added “close friend” to that list, according to the American Bar Association Commission on Law and Aging; some states also include aunts and uncles, nieces and nephews, and adult grandchildren. A member of the clergy can serve in that role in Texas. The wider the net, the reasoning goes, the greater the likelihood of finding someone authorized to make decisions. Legalized same-sex marriages also mean fewer unrepresented gay and lesbian older adults.

This is an interesting article that provides good content for discussion with students about the importance of advance directives, and the potential for problems without them.

Health Poll September 2015

The Kaiser Health Network September, 2015 tracking poll  tackled several issues. The one I was most interested in was the results on the public's view of end of life care.

As the Centers for Medicare & Medicaid Services prepares to finalize a plan to pay physicians for discussing end-of-life treatment options with Medicare patients, this month’s Kaiser Health Tracking Poll finds that about 8 in 10 of the public favors Medicare and private insurance covering such discussions and about 9 in 10 say doctors should have these discussions with their patients. However, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 27 percent of people age 65 or older, while half of the public says they would want to have such a discussion. Over 8 in 10 say they would feel very comfortable talking about their end-of-life medical wishes with their spouse or partner and closer to half say they would be very comfortable talking with a doctor, their children, their close friends or their parents....

The detailed discussion of the poll results provides interesting statistics. Consider the following:

About 9 in 10 (89 percent) say doctors should discuss end-of-life care issues with their patients. But, relatively few (17 percent) say they’ve had such discussions with a doctor or other health care provider, including 34 percent of people age 75 or more, 23 percent of people age 65-74, 19 percent of those age 50-64 and 12 percent of those age 18-49. In addition, those who report having a debilitating disability or chronic condition are more likely to say they have discussed their end-of-life care wishes with a health care provider than those without a disability (31 percent vs. 13 percent). A third of the public says they have participated in a discussion with a doctor about another family member’s wishes about their care at the end of life, including 46 percent of those ages 50-64. Across age groups, many say they would want to have such a discussion about their own end-of-life care (50 percent overall).

The full poll results are available here.

 

New Demographics of Aging -- In Cuba

A window into the demographics of what happens when the average age of populations rises sharply is provided by the New York Times, with a focus on Cuba.  From In Cuba, An Abundance of Love but a Lack Of Babies, by Azan Ahmed:

By almost any metric, Cuba's demographics are in dire straits.  Since the 1970s, the birthrate has been in free fall, tilting population figures into decline, a problem much more common in rich, industrialized nations, not poor ones.

Cuba already has the oldest population in all of Latin America.  Experts predict that 50 years from now, Cuba's population will have fallen by a third.  More than 40 percent of the country will be older than 60.

 

The demographic crisis is both an economic and a political one.  The aging population will require a vast health care system, the likes of which the state cannot afford.  And without a viable work force, the cycle of flight and wariness about Cuba's future is even harder to break, despite the country's halting steps to open itself up to the outside world....

The article goes into more depth, including identifying factors such as inadequate housing for new families, educational trends that encourage couples to delay having children, and, perhaps most significant, scant job opportunities to support families.   The article also suggests that abortion "is not so uncommon" in families. 

Ins and Outs of APS System

The National Center on Elder Abuse (NCEA) has a really cool fact sheet on APS. Adult Protective Services: What You Must Know, provides a concise explanation of APS, reporting, FAQs and client protections. Great information in a 2 page document! This would be a good resource for students to gain understanding of APS.

 

The Spreading Impact of Dementia

I've posted several times of late on recent articles about dementia.  So here is one more, from England.  Published September 21, 2015 in The Guardian, One-third of British people born in 2015 'will develop dementia' looks at the projections of dementia in England. The article opens with sobering statistics. "One in three people born this year will develop dementia, according to new figures. The Alzheimer’s Research UK charity warned of a “looming national health crisis” as the population ages." Quoting Alzheimer's Research UK which offered that age is the most significant risk factor, the article offers future predictions:

As people live longer than ever before, the numbers with dementia will rise. The latest analysis, commissioned by the charity and carried out by the Office of Health Economics, was released to mark World Alzheimer’s Day.

It showed 27% of boys born in 2015 will develop the condition in their lifetime, alongside 37% of girls. Previous research from the same team has estimated that the development of a drug that could delay the onset of dementia by five years would cut the number of cases by a third.

We know the implications on caregivers from this disease. The article offers the fiscal impact on the country:

George McNamara, head of policy at Alzheimer’s Society said: “Dementia is already the biggest health challenge this country faces. It costs the UK in excess of £26bn, which equates to £30,000 a person with dementia – more than the cost of either cancer or heart disease. Today’s stark finding should galvanise the government, and us all, into action.”

 

Questions About the Infrastructure of Traffic Safety -- and How it Impacts Aging Populations

Recently I witnessed a nighttime accident on Interstate-81 in Cumberland County, Pennsylvania. There was an unmistakable "boom" signaling a rear-end collision. One truck (that appeared to be a large rental truck) had rear-ended an 18-wheeler behind me -- and I watched the faster moving rental truck continue past me on the road with heavy damage on its right side, before eventually veering to a shaky halt in the median. As far as I could tell, both drivers were alive, but at the first safe spot, I called 911.     

I got off of I-81 at the next exit.  I paused both for gas and to take a breath of crisp night air, before taking a back road the rest of the way home. While I was fueling, an older man in the car next to me, a car with West Virginia license plates, pointed to the I-81 overpass where traffic was crawling through more flashing lights.  He asked, "Is it safe for us to get on the road to get home? We live about 75 miles from here."  Frankly, I had no way to answer that with any confidence.  He shook his head and said to his companion, "I think we should stay in a motel tonight."

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Impact of Dementia on Caregivers

The October 2015 issue of Health Affairs contains an article about the impact of caring for an individual with dementia has on caregivers (family and unpaid),  The abstract provides a description of the article, the Disproportionate Impact Of Dementia On Family And Unpaid Caregiving To Older Adults 

The number of US adults ages sixty-five and older who are living with dementia is substantial and expected to grow, raising concerns about the demands that will be placed on family members and other unpaid caregivers. We used data from the 2011 National Health and Aging Trends Study and its companion study, the National Study of Caregiving, to investigate the role of dementia in caregiving. We found that among family and unpaid caregivers to older noninstitutionalized adults, one-third of caregivers, and 41 percent of the hours of help they provide, help people with dementia, who account for about 10 percent of older noninstitutionalized adults. Among older adults who receive help, the vast majority in both community and residential care settings other than nursing homes rely on family or unpaid caregivers (more than 90 percent and more than 80 percent, respectively), regardless of their dementia status. Caregiving is most intense, however, to older adults with dementia in community settings and from caregivers who are spouses or daughters or who live with the care recipient.

A subscription is required to access the full article.

 

LTC Facilities Monitoring in Illinois

I was interested to learn about a new law in Illinois that allows for electronic monitoring in long term care facilities in certain cases.  Protecting Our Own: The Practical Implications of Illinois’s Authorized Electronic Monitoring in Long-Term Care Facilities notes that this new law goes into effect at the beginning of 2016 and  "permits nursing home residents in facilities that are licensed under certain state legislation such as the ID/DD Community Care Act or Nursing Home Care Act to use audio or video surveillance in their room at their own expense."  There are criminal penalties if anyone interferes with the monitoring devices and there is some money available for those facilities unable to afford the devices.

Illinois joins 4 other states (New Mexico, Oklahoma, Texas and Washington) with electronic monitoring laws.  There are other states that have guidelines for those LTC facilities who want to allow monitoring based on a desire of a resident.  The article discusses the pros and cons of monitoring and offers concerns regarding quality of care.

In terms of quality of care, having cameras in the rooms may also affect the important relationships developed between facility caregivers and their residents.  The staff may choose to rely on the cameras to monitor residents rather than engaging in direct communication, potentially leading to mistrust and even a greater substandard of care that such legislation was meant to combat in the first place.  Residents may never truly feel comfortable without the bond usually fostered between the two parties, contributing to a negative experience.

The Illinois statute is available here. One section of the statute addresses consent to monitoring. Written consent by the resident (or the resident's guardian) is required on a specific form from the state agency.  If the resident's doctor determines the resident lacks the capacity to consent, the statute provides a priority list of individuals who may provide consent.  Among other things, the statute addresses monitoring when the resident has a roommate. The statute also provides for conditions to be set on monitoring. The "standard" conditions set out in the statute include no audio recording, no transmission of either video or audio,  powering off the devices or blocking taping when a health care professional is caring for the resident or roommate or during bathing and dressing or during visits by certain folks such as attorney, financial planner, and  ombudsman. Other restrictions beyond the statutory ones can be imposed.  The statute addresses other matters, such as notice, reporting and more.   Read the Illinois statute here.

NYT: Dying Alone Is Not -- in the Long Run -- a Solo Activity

In one of those feature articles that The New York Times does so well, N.R. Kleinfeld reports The Lonely Death of George Bell.  It is a sad story, as Mr. Bell died in his apartment at the age of 72 and no one "missed him," so his body was not discovered for days.  You may have stopped reading precisely because it is such a sad story.  But, at the same time, George's story is a surprising tale of the potential consequences of dying alone.  The article lays out the layers of necessary decision-making, from the simplest of questions -- where will George be buried -- to the complex, where public authorities must hunt for an executor and for beneficiaries named in George's 30-year old will.  Then, in turn they must hunt for their heirs, when it turns out that this modest man's death left behind almost a half million dollar estate and few living connections.

My thanks to Penn State law student Kevin Horne who shared with me the link to this interesting story.  As he points out, this story gives another side to our course on Wills Trusts & Estates.     

LTC & Dementia-Start Saving Now.

USA Today ran an article on October 15, 2015 about the cost of long term care for individuals with dementia, especially those with Alzheimer's. The estimated price tag?  Almost three quarters of a million dollars! Got $730K saved for nursing care? Dementia could cost that much notes that a person with dementia needing long term care could live for several years, needing round the clock care,the cost of that care mounts up and "leav[es] families in an emotional, financial and logistical quagmire."

This is a growing issue and one that will affect many. "Boomers are increasingly faced with supporting both their children and their parents, or at least helping to figure out how their parents can best help themselves. Senior citizens with heart disease and cancers that were once a death sentence are now living far longer."

The article discusses Medicare and Medicaid as far as coverage for long term care and the differences in Medicaid programs amongst states.

The Importance of Understanding Trusts in Family Law, Especially If Divorce Looms

The ABA Section on Family Law has devoted the entire Fall 2015 issue of its Family Advocate magazine to "Crossing Paths with a Trust."   The paper copy of the issue just appeared on my desk. The opening editorial advises family law attorneys advising clients considering divorce not to fear trusts:

Lawyers who simply take a deep breath and read the trust will often be surprised to learn that they have in their hands a road map for how assets will be managed, who gets what, when they get it, and under what terms. 

The articles in the issue include a "plain English guide to trusts as a means of orchestrating assets in divorce cases," how trusts can interact with disclosure requirements for premarital agreements, how to address equitable division of interests assigned to trusts, the use of child support or alimony trusts, and the unique potential advantages for using trusts for "special needs" planning for disabled children.  The issue ends with a bonus -- a primer on "will basics."

The articles underscore what I sometimes find myself saying to law students, that courses on "wills, trusts and estates" are about advanced family law issues, and that if families fail to address disputes among family members while they are still living, the issues may not be any less complicated when the asset-holding family member passes away. 

The entire issue seems like a good resource for a wide audience, including law students.  Unfortunately, the on-line version of Family Advocate issues is restricted to ABA Family Law Section members, at least during the first few weeks of  publication.  Apparently you can purchase paper copies (see for example the rates for the previous issue, for  Summer 2015) , including bulk orders, although I find there is often a lag time for specific issues to become available to purchase.  I guess you have to keep checking!    

Evidence Based End of Life Care?

The New England Journal of Medicine published a perspective piece, Toward Evidence-Based End-of-Life Care.

In the last month of life, one in two Medicare beneficiaries visits an emergency department, one in three is admitted to an intensive care unit,and one in five has inpatient surgery. But one of the most sobering facts is that no current policy or practice designed to improve care for millions of dying Americans is backed by a fraction of the evidence that the Food and Drug Administration would require to approve even a relatively innocuous drug.

The article explains why this evidence is important

The public and private sectors are now engaged in an unprecedented array of virtuous efforts to improve end-of-life care. That these efforts are generally not evidence-based is not the fault of the organizations promoting them. It is the responsibility of investigators and research sponsors to identify, develop, and rigorously test interventions so that they can offer guidance as growing political and cultural tolerance increasingly permits implementation of end-of-life care programs. Achieving evidence-based end-of-life care will require at least four key developments — which, fortunately, are now attainable.

The article discusses the four key developments and notes in conclusion "the central challenge is to avoid complacency regarding plausibly useful but non–evidence-based initiatives. Researchers, research sponsors, and large insurers, employers, and health systems can collaborate to advance knowledge about what works best for whom. And the sooner they do so, the better...."

Top Ten Myths and Facts about "Living Wills" -- Charles Sabatino Lays Them Out

ABA's Bifocal, an electronic journal from the ABA Commission on Law and Aging has released one of its October issue articles.  Written by Charlie Sabatino in his usual bold style, we confront ten "Myths and Facts About Health Care Advance Directives," sometimes better (if confusingly) known as "living wills."  To tease the article,  Myth #3 is "Advance Directives are legally binding, so doctors have to follow them."  You will want to read the rest of the story....

In-Person Interactions & Depression

Oregon Health & Science University (OHSU)  announced the forthcoming publication of a report on elders and depression and the differences when they had in-person interactions vs. virtual interactions.  Research: Face-to-face socializing more powerful than phone calls, emails in guarding against depression in older adults  is published in the Journal of the American Geriatrics Society (free to members).  The release on the study described the findings: "Study participants who regularly met in person with family and friends were less likely to report symptoms of depression, compared with participants who emailed or spoke on the phone. The gains people derived from face-to-face socializing endured even years later."

Here are some more details about the study from the news release:

Researchers examined the frequency of in-person, telephone and written social contact, including email. Then they looked at the risk of depression symptoms two years later, adjusting for potential confounding factors including health status, how close people lived from family and preexisting depression.

The researchers found that having little face-to-face social contact nearly doubles your risk of having depression two years later. They also reported that having more or fewer phone conversations, or written or email contact, had no effect on depression.

Study participants who met up with family and friends at least three times a week had the lowest level of depressive symptoms two years later – 6.5 percent – than those who had less frequent contact. Individuals who met up just once every few months or less frequently had an 11.5 percent chance of depressive symptoms.

 

Market Trends in Financing for Senior Housing Options

Recently I was reading an issue of The Senior Care Investor, a subscription-based news service that reports on the "World of Senior Care Mergers, Acquisitions, and Finance," and doing so since 1948. 

For approximately the last three years, most of the M & A activity has been in assisted living (AL) and memory care (MC).  Senior Care Investor reports that CCRCs are "beginning to make a comeback" as the housing market recovers and prospective residents are again able to use equity in their homes to finance transitions into CCRCs.  The most recent issue also indicates some development money is returning to the skilled nursing facility market, even as overall M & A activity in senior housing is lower in 2015 than in 2014.  

I've been watching quite a bit of activity over the last few years in conversions of nonprofit senior housing operations to "for profit" and there is more evidence of that in the latest report. But the most recent issue (Issue 9, Volume 27) also reports on a "rare for-profit to not-for-profit deal," with a New Mexico-based company, Haverland Care LifeStyle Group, purchasing a new AL/MC community in Oklahoma.  

Also, the Senior Care Investor reports on a faith-based, not-for-profit CCRC provider that has decided to sell an entrance fee model (one that's in transition to an "all rental" model) that will offer independent living, AL, MC units and nursing home beds.  What happens when senior housing operations are fully "private pay" AND "rental" models AND disconnected from a faith-based organization?  Can they maintain their tax-exempt status? In other words, if the public is paying market rates (and thus higher rates based on any market increases) with no promises of future care if the residents run out of money, is that senior housing enterprise still a nonprofit operation entitled to be treated as exempt from federal income taxes?   

Register Now. Webinar on Improving Client Mental Health to Positively Impact Abuse Resolution

NAPSA and the National Council on Crime & Delinquency announce a webinar on  Improving Client Mental Health to Positively Impact Abuse Resolution.   The webinar is scheduled for October 20, 2015 from 2-3:30 p.m. edt.

The announcement explains the webinar

In this webinar we will discuss the implementation of mental health screening and Problem-Solving Psychotherapy (PST) into routine elder abuse services. Providing Options To Elderly Clients Together (PROTECT) is a mental health program where anxiety and depression screening and problem-solving therapy with anxiety management are integrated into elder abuse services to improve the outcomes of victims with depression and/or anxiety. The webinar will describe the methods used and the effects of the program on staff and clients.

Click here to register for the webinar.

  

Dick Van Dyke's Lucky Life "Keeps Moving"

Memories of my childhood include two now classic television moments, watching my mother do her morning exercises with Jack LaLanne and all of us laughing with Dick Van Dyke.  So it seems appropriate today, as we prepare to celebrate my Mom's 90th birthday with friends and family, that I will be able to give her Dick Van Dyke's new book, Keep Moving: And Other Tips and Truths About Aging.  The title is apt. Mr. Van Dyke is just a couple of months younger than my mother.  And, of course, my mom doesn't need Mr. Van Dyke's reminders -- she's figured it out on her own -- but we both enjoyed his previous memoir, My Lucky Life.   

Here's a recent NPR Interview with Dick Van Dyke.

And here's a link to a Podcast of Diane Rehm's recent interview of Dick Van Dyke. 

FINRA Rules on Preventing Elder Abuse

The Financial Insurance Regulatory Authority (FINRA) distributed a press release on October 15, 2015. FINRA Solicits Comment on Proposed Rules Addressing Financial Exploitation of Seniors announced the release of Regulatory Notice 15-37 which seeks

comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing amendments that would require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer's account. In addition, FINRA is proposing a new rule that would permit firms to place a temporary hold on a disbursement of funds or securities when there is reasonable belief of financial exploitation, and to notify the trusted contact of the temporary hold.

The comment period closes November 30, 2015.  The regulatory notice is available here. 

The executive summary explains

FINRA seeks comment on proposed rules addressing the financial exploitation of seniors and other vulnerable adults. FINRA is proposing: (1) amendments to FINRA Rule 4512 (Customer Account Information) to require firms to make reasonable efforts to obtain the name of and contact information for a trusted contact person for a customer’s account; and (2) the adoption of new FINRA Rule 2165 (Financial Exploitation of Specified Adults) to permit qualified persons of firms to place temporary holds on disbursements of funds or securities from the accounts of specified customers where there is a reasonable belief of financial exploitation of these customers.

When One Spouse Uses Community Funds to Care for His Infirm Parent, Is That A Breach Of Fiduciary Duty to His Spouse?

Last week I spoke on filial support duties, and one question from the audience was whether Pennsylvania's filial support law could obligate someone to provide for a stepparent.  My answer under Pennsylvania law was "probably not." My analysis was based on Pennsylvania cases, such as Commonwealth v. Goldman, that had used a strict definition of parent-child relationship for purposes of calculating the limits on indigent support obligations, although doing so in the context of in-laws rather than stepparents.

But something in the back of my mind was itching, and of course, over  the weekend I started scratching.  I remembered a case, which did seem to recognize a potential for indirect obligations to "parents-in-law." 

The case is from California, where divorcing spouses were arguing over division of community property.  One focus of the disputes was proceeds of the sale of a former house.  While rejecting an argument that the sale of the property transmuted the funds into 50/50 separate property, a California appellate court was willing to consider the expenditure by the husband of some of these funds to care for his "infirm mother" to be a "community debt."  Further, the court observed that unlike the obligation to "reimburse the community" for payment out of community funds to support a child not of that marriage, there was no statutory obligation to "reimburse the community" if the funds were used to care for one spouse's parent.

Pointing to California's "not commonly known" filial responsibility law, the court held that if the funds were actually spent for care of his indigent mother, such use did not constitute an "unauthorized gift."  

The court went further, however, noting that "a spouse's debt payments may constitute a breach of fiduciary duty and run afoul" of California law dealing with contracts with third parties, when entered into by only one married party. A bit of a Catch-22 problem, right? However, this interesting fiduciary duty issue "was not raised" in the parties' briefs and therefore was not resolved on this appeal.

On remand, husband was "entitled to establish the funds were expended to support his mother, who was in need and unable to maintain herself."  For the full analysis, including citations to the relevant California statutes, see In re the Marriage of Leni (2006).

DOJ Settlement vs. CCRC

The Department of Justice announced a $255,000 settlement vs. a CCRC.  United States Obtains $255,000 Settlement of Disability Discrimination Lawsuit Against Continuing Care Retirement Community in Lincolnshire, Illinois explains a proposed settlement (the settlement has to be approved by the court).  The press release explains that this settlement resolves "allegations that the owners and managers of a continuing care retirement community known as Sedgebrook violated the Fair Housing Act by instituting policies and maintaining practices that discriminated against residents with disabilities at the facility, which is located in Lincolnshire, Illinois..."

The complaint alleges that since 2011, Sedgebrook has instituted a series of policies that prohibited, and then limited, residents’ ability to dine in the communal dining rooms of the independent living wing of the facility if they required assistance eating due to a disability.  Additionally, the complaint alleges that Sedgebrook maintained a policy prohibiting residents of the independent living wing from hiring live-in caregivers and refused to grant reasonable accommodations to that policy that would have allowed Sedgebrook residents with disabilities to use and enjoy their apartments.

As part of the settlement, the CCRC "will appoint a Fair Housing Act compliance officer and will implement a new dining and events policy, a new policy applicable to residents’ private employment of caregivers, and a new reasonable accommodation policy.  Additionally ... the company that manages Sedgebrook and is a named defendant in the lawsuit, will take steps to implement similar policies at the over 100 independent living and continuing care retirement communities it owns or manages across the country."

The complaint and consent order are available for download here.