Thursday, December 31, 2015
The Wall Street Journal has a good article, Officials Seek Clampdown on Elder Fraud, reporting on attempts by federal and state agencies to increase accountability for financial exploitation, especially of older persons, by financial institutions handling the transactions:
Grappling with growing financial exploitation of the elderly, state officials are pressing for laws that require financial advisers to report suspected “elder fraud” to authorities. But the mandate faces pushback from the financial industry, which says it could result in a massive number of reports that turn out to be false....
To help curb the problem, a coalition of state securities regulators in September proposed a model state law that would require financial advisers, including brokers at large investment houses and independent advisers, as well as their supervisors, to report suspected elder financial fraud to both a state securities regulator and an adult protective-services agency.
The legislation would mandate prompt reporting by a financial adviser who “reasonably believes that financial exploitation” of an older person “may have occurred, may have been attempted, or is being attempted.” The bill gives brokers and advisers civil immunity from privacy violations for reporting suspected fraud, and allows them to put a temporary hold on suspicious account disbursements. Supporters say advisers and brokers are well-positioned to raise early warnings about exploitation that can leave elderly victims with scant money left for necessities and little time to rebuild savings.
In hearings where I've testified about the potential benefits of so-called "mandatory reporting" by financial institutions, representatives of banks offer a host of explanations for why mandatory reporting isn't necessary. Sounds like the same arguments I have encountered were repeated for the Wall Street Journal reporters:
Currently, even when financial advisers suspect an aging client is being taken advantage of, many say they are hamstrung by strict rules governing the execution of trades and processing of withdrawals, and worry about violating privacy laws if they report concerns.
The current system, “kind of puts advisers and firms in between a sort of legal rock and hard place,” said Steve Kline, director of state government relations for the National Association of Insurance and Financial Advisors, a professional association. The proposed rules aim to provide clarity.
Certainly I understand industry hostility to more regulations. At the same time, it seems to me that one option would be to offer immunity from tort or contractual liability for "negligent" failure to report suspected financial abuse, for any financial institution that can show it routinely monitors for abuse and that uses a reasonable system for reporting. A "carrot" rather than a "stick" to encourage reporting.
Our thanks to University of Illinois Professor Dick Kaplan for sharing this article.
An article in the most recent issue of the ABA Commission on Law & Aging, BIFOCAL focuses on instructional directives. In light of CMS reimbursing doctors for end of life discussions with patients, author Susan P. Shapiro, in The Living Will as Improvisation, suggests "it is appropriate to reflect on the legacy of advance directives and ask how physicians might best serve their patients as they anticipate life’s end."
The author notes that
Although the value of proxy directives, which designate a medical decision maker in the event that a person loses capacity in the future, has been repeatedly demonstrated, that of instructional directives or so-called living wills, which state treatment preferences, has not. A new report by the Institute of Medicine concludes that legal approaches embodied in living wills have “been disappointingly ineffective in improving the care people nearing the end of life receive and in ensuring that this care accords with their informed preferences .... (citations omitted).
However, the author discusses the lack of hard data makes it difficult to determine whether living wills have little usefulness these days. The author turns to her own research, explaining that for 3 years she and hospital social worker
observed medical decision making on behalf of patients without decision-making capacity, day after day, from admission to discharge. Daily observations over the course of each patient’s ICU stay tracked when anyone asked about or referred to an advance directive, how the directive was used, and the correspondence between the patient’s treatment preferences articulated in the directive and the host of decisions made on their behalf....
The article discusses her findings regarding the role of advance directives in these cases . It's quite illuminating, especially the discussion about the correlation (or lack thereof) between the directive's existence and how decisions are made. The author suggests there are significant differences between making the directive when all is well and using the directive when all is not. The author concludes the article with this thought: "[a] truly directive living will is not a script, but rather an evolving, ongoing dialogue throughout the life course with those who may someday be called to improvise on our behalf. Let’s hope that Medicare dollars are used to help enrich the conversation."
Wednesday, December 30, 2015
I was reading recently about microaggressions and was interested in this article in Huffington Post/ Post 50 on microaggressions as it pertains to elders. 10 Microaggressions Older People Will Recognize Immediately explains that microaggressions are "the small everyday slights (intended or otherwise) that harbor an underlying attitude of racism, sexism or homophobia -- have been making the rounds of college campuses and workplaces." The article explains that microaggressions also occur against elders and need to be included in the national discussion. The article provides 10 examples of microaggressions, including tone of voice, unflattering language and commercials, jokes about elders' lack of technology skills, and professionals talking to the child instead of the elder.
Having students list examples of such microaggressions could be an interesting exercise for a discussion about ageism.
Tuesday, December 29, 2015
An article in the Washington Post shortly before Christmas had me shaking my head at the cluelessness of some employees of nursing homes regarding resident privacy. Nursing home workers have been posting abusive photos of elderly on social media gave me one of those "you have got to be kidding me moments." Maybe it's an age-gap thing, but I just can't fathom why it would be appropriate to post intimate photos of individuals with whose care one is entrusted. The article indicates that this is not a geographically isolated problem:
Nursing home workers across the country are posting embarrassing and dehumanizing photos of elderly residents on social media networks such as Snapchat, violating their privacy, dignity and, sometimes, the law.
ProPublica has identified 35 instances since 2012 in which workers at nursing homes and assisted-living centers have surreptitiously shared photos or videos of residents, some of whom were partially or completely naked. At least 16 cases involved Snapchat, a social media service in which photos appear for a few seconds and then disappear with no lasting record.
The article offers some illustrations of these photos and the remedies available against the perpetrators. The article also notes that not only are those photos invading resident privacy, they serve as evidence of the violations.
The incidents illustrate the emerging threat that social media poses to patient privacy and, at the same time, its powerful potential for capturing transgressions that previously might have gone unrecorded. Abusive treatment is not new at nursing homes. Workers have been accused of sexually assaulting residents, sedating them with antipsychotic drugs and failing to change urine-soaked bedsheets. But the posting of explicit photos is a new type of mistreatment — one that sometimes leaves its own digital trail.
How often is this violation of resident privacy occurring? The article notes that "ProPublica identified incidents by searching government inspection reports, court cases and media reports. [A district attorney in Massachusetts] said she suspects such incidents are underreported, in part because many of the victims have dementia and do not realize what has happened." So far HHS' Office of Civil Rights hasn't sanctioned any nursing homes "for violations involving social media or issued any recommendations to health providers on the topic." The article notes that CMS, in the process of revising the regs dealing with nursing homes, plans to deal with the issue when revising the definitions of various types of elder abuse. Even one of the social media sites referenced in the article expressed concern about the actions of those nursing home employees.
The article summarizes some cases where charges have been filed. Read the story and assign it to your students.
December 29, 2015 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Other | Permalink | Comments (0)
Becky and I write often on the subject of elder financial abuse and the growing attention by financial institutions being paid to exploitation of older persons. But, recently a colleague from the UK sent me a link to an article that is a dramatic reminder of the larger world of financial abuse as a form of domestic violence.
From The Guardian, reporting on a survey and campaign by Co-op Bank and the charity Refuge:
Almost one in five UK adults have suffered control or exploitation of their finances by a partner, according to a report published to launch a campaign against “financial abuse.”
A survey of more than 4,000 people found that 18% had been a victim of financial abuse in a current or former relationship, and that a third of those affected had never told anyone what was happening. Half of the victims said a partner had made significant financial decisions without consulting them, or forced them to ask permission to spend or show evidence of having done so.
Six in 10 of those reporting abuse were female, although victims spanned all gender, age and income groups. For women reporting experience of the problem, the abuse tended to start at key life stages: 71% said it was when they moved in with a partner, 75% said it was when they got married, and 30% when they had children. Among men the figures were 28%, 25% and 30% respectively.
The good news, reported in the article linked above, is that banks are developing codes of practice to create more consistence lines of response for suspected abuse and to "develop awareness-raising materials for customers and train staff to respond appropriately."
Monday, December 28, 2015
It's about an elder whose family can't make it home for Christmas and what he does to gather his family. You can watch it here. https://www.youtube.com/watch?v=V6-0kYhqoRo
The Washington Post ran a story about it. This heartbreaking holiday ad is a powerful reminder of old people’s loneliness.
What do you think of the ad?
Sad news about manipulation by attorneys of older clients, and about specific individuals who have been sanctioned recently for their abuse:
- Florida Supreme Court "permanently disbarred" Cape Coral Florida attorney William Edy for theft from his clients. Before being charged with second degree grant theft from clients, Edy apparently held himself out as a trustworthy elder law attorney, writing a newspaper column and even commenting on financial abuse of the elderly.
- New Jersey Supreme Court suspended New Jersey attorney William Torre for one year, while sanctioning his conduct in "borrowing" money from a "vulnerable" 86 year old client, acting in his own self-interest and failing to repay her in a timely and appropriate manner.
The New Jersey court, writing unanimously, observed:
The Court considers respondent’s conduct against the backdrop of the serious and growing problem of elder abuse. As the population ages, and more people suffer health problems, it is not uncommon for family members to seek the appointment of a guardian to oversee the finances of an incapacitated loved one. Others, like M.D., turn to family or professionals for help and execute powers of attorney in favor of a relative, friend, or trusted lawyer. In those situations, the vast majority of attorneys perform honorably and act in a manner consistent with the highest ethical standards. But regrettably, as more seniors have needed help to manage their affairs, allegations of physical and financial abuse have also increased.
In a News-Press article about the Florida disbarment, Professor Geoffrey Hazard (Emeritus at Penn Law, Southern California Law and Yale Law) is quoted as noting that places with large numbers of retirees, such as Southern California, Florida and Arizona, have a "greater risk of attorney misbehavior," in part because of isolation from children and friends with whom they can discuss situations.
Along the same lines of financial misconduct by "professionals," a Texas psychiatrist, Dr. Robert Hadley Gross, was recently sentenced to "nearly six years in prison" for submitting false claims for services to residents at a nursing home, individuals who were shown to be either dead or discharged.
Thursday, December 24, 2015
My father grew up on a mining stake in the middle of an Arizona desert, called the Silver Bell, even though his father, a bit of a dreamer, was scratching for gold. It was a tough life. My father and his brother, the only children for miles, received their education from a series of young, live-in teachers, who would be dropped off to spend a few months on the stake, before each fled, never to return. My dad often commented that there were entire subjects he never heard of as a boy, because the young teachers simply did not have sufficient experience to teach them. On the other hand, he was introduced to poetry early in life.
While today, at age 90, my dad might forget my name, with a little prompting he still smiles as he recites stanzas from Charge of the Light Brigade" or "In Flanders Fields." He introduced me to poems early on as well, and "Twas the Night Before Christmas" (or "A Visit from St. Nicholas") was one of the first I learned.
I was digging around for my childhood copy of the poem this year, and I came across a bit of a mystery. It seems it isn't completely resolved who wrote the poem, first published as the work of an "anonymous" author by a New York newspaper on December 23, 1823. My dog-eared copy of an illustrated version shows Clement Moore as the author. But in 2000, researchers questioned this attribution, pointing to Major Henry Livingston, Jr., as the more likely author. That in turn sparked counter-evidence.
Either way, both my father and I, despite (or perhaps because of) growing up in arid lands, have special affection for the poem's line, "The moon on the breast of the new-fallen snow, gave a lustre of midday to objects below." Wishing you that peaceful scene as well....
Tech gifts are always a popular gift for the holidays, but how much use do they get? Perhaps it depends to some extent on the age of the recipient, at least for those gifts that require online access. Pew Research Center recently issued a report that looks at frequency of online access. One-fifth of Americans report going online ‘almost constantly’ reports on the frequency of online access by age group, as well as by education and income. I am sure all of us are online a lot (you have to be online to read this post). How did we manage before the internet? (that's tongue in cheek if you were wondering). "Younger adults are in the vanguard of the constantly connected: Fully 36% of 18- to 29-year-olds go online almost constantly and 50% go online multiple times per day. By comparison, just 6% of those 65 and older go online almost constantly (and just 24% go online multiple times per day)."
How many devices do you have? Odds are, more than one. Another Pew report from November noted that "66% of Americans own at least two digital devices – smartphone, desktop or laptop computer, or tablet – and 36% own all three." Smartphone, computer or tablet? 36% of Americans own all three.
Want suggestions on what tech gifts to get (or give)? Check out AARP's The Ultimate Guide to Tech @50+ which provides information about 32 different tech gifts in 10 categories, ranging from health to money management.
Wednesday, December 23, 2015
While riding on "The Tube" in London recently, I noticed this sign:
In case the text in the photo is a little blurry or too small for you, here's what it says:
No one should have no one at Christmas
No one to hang the tinsel with. Or mistletoe for that matter. No one to share a sherry, a gift or cracker. No one to say Happy Christmas to. Or bring you mince pies in bed. No one to make one day any different from the rest. No one, but no one, should have no one at Christmas.
The sign was sponsored by Age UK, and the final line is an encouragement to reach out to someone "older" who is lonely. Good words for any time of the year....
Although there is no season for scammers-it's a year round problem. But with the holidays there are specific scams that pop up. The Consumer Financial Protection Bureau recently blogged about holiday scams that target elders. Beware of Scams Targeting Older People During the Holidays warns that
Scams that target older people occur every day, but you can count on scammers to ramp up their efforts to prey on people’s generosity during the holiday season. These grinches, armed with their dirty tricks, may even weave the holidays into elaborate stories to pull at your heartstrings as they slip their sticky fingers into your wallet.
During the holidays, the common scam known as the imposter or “grandparent scam” might be decorated with a special plea, a story of a relative in trouble who desperately needs money to fix a car or get out of jail – and home for the holidays.
These perpetrators are very skilled at what they do, and they aren't shy about intimidation:
The ruse known as the IRS scam takes on a vicious new twist with a grinch on the phone threatening an elder with being arrested and spending the holidays in jail for unpaid taxes or a fake debt. And then there is the predictable increase in false or imposter charities, which sound identical to the real ones. The pitch is wrapped in sympathy inducing requests for year-end, tax-deductible holiday donations. These grinches stand ready to take your credit card or check routing information and charge you for bogus Nutcracker ballet tickets, or a holiday charity fundraising event.
The CFPB offers tips for folks to protect themselves against these three scams and provides links to information available on the CFPB website. The blog post also appeared on the National Center for Elder Abuse website.
Tuesday, December 22, 2015
I was listening to NPR's Morning Edition recently while working on this Blog and that's how I learned about a great resource, a telephone-based screening test for hearing problems, that individuals can take at home. Offered by The National Hearing Test, the cost is $5 (free for AARP members) and the process was developed with the help of an NIH grant. What impressed me is it tests for the ability to hear words (numbers) against background noise, a very realistic screen for many people's concerns. After taking the test, you are offered guidance and resources for follow-up. The NPR story made the point that unlike vision problems, which are hard to blame on others, it is all too easy for those with hearing problems to assume the problem "is" background noise or a failure of younger people to "speak up." Further, evaluation of hearing can be an important marker for other health issues, including problems with cognition.
For most reliable results, the website encourages you to use a traditional wired-phone connection, not a cell phone.
According to operation's website (linked above):
The National Hearing Test is provided on a nonprofit basis. It has no financial connections with any hearing products or services. (Free tests are typically offered by organizations selling hearing aids or providing services for a fee.) The $5.00 fee helps defray the costs of making it widely available to the public and processing test data; any remaining money goes to support further research on hearing loss.
Perhaps "taking" the screening test is a holiday present we can give our families.
Monday, December 21, 2015
Robert Fleming of Fleming and Curti in Tucson, Az. (Robert is a nationally known elder law and special needs attorney, co-author of the Elder Law Answer Book, an adjunct at Stetson Law, and (in the interest of full disclosure a dear friend)) writes a weekly Legal Issues Newsletter. The December 7th, 2015 newsletter focused on Holiday Gifts for Older Family Members and Friends. The suggestions run from clothing and other items to help an elder stay warm to various cool technologies and gadgets used in the kitchen or in the home, or even the car. I liked the stocking stuffer suggestions as well as the phone that comes with captioning. Robert provides helpful links to the various items suggested in the newsletter. Check it out!
The November/December 2015 issue of the ABA magazine (Volume 32, Issue 2) GPSOLO, the publication for members of the Solo, Small Firm and General Practice division of the American Bar Association, is devoted to Elder Law. The issue can be found on-line (and viewing does not seem to be restricted to division members!). The articles are also available on Westlaw.
- How to Make Money Practicing Elder Law, by Andrea G. Van Leesten, who practices in California and who is the 2015-16 Diversity Director for the Division;
- Representing Elder Physical Abuse Victims, by California practitioner Mark Redmond, who has "focused primarily on representation of elders in cases of physical and financial abuse for the last 15 years;"
- Advocating for Elders Suffering Financial Abuse and Exploitation, by Nicole Le Hudson, who focuses her San Diego practice on disability and elder law and who is a "member of the court-appointed attorney panel for conservatorships;"
- The State of Age Discrimination Law: An Update, by Brian McCaffrey, who focuses his New York practice on employment litigation;
- Estate Planning for Old Age and Incapacity, by Sheila-Marie Finkelstein, who practices estate planning in Irvine, California;
- Counseling Clients about Health Care Toward the End of Life, by Sally Balch Hurme (who I just discovered while reading her article recently retired from 23 years of consumer advocacy with AARP -- but who is still clearly very active in elder law, thank goodness!);
- How to Fund Long-Term Care Without Medicaid, by Eileen Walsh, from Louisville, and I have to admit I read her article first - she explores Medicare, insurance, VA benefits and reverse mortgage options); and
- What Every Lawyer Needs to Know About Planning for Retirement, by Cynthia Sharp who "works with motivated lawyers seeking to generate additional income."
Charlie Sabatino brings to bear his 30 years of experience and careful thought to the question of whether having older clients automatically means you are practicing "elder law," in his column "GP Mentor: When Does Serving Older Clients Become Elder Law?" Hint? The answer may depend on whether you are working in the best interests of the senior.
In addition, there is a great Resource Guide of recent texts on Elder Law and the Division Chair's essay on recognizing Elder Abuse. PLUS, there's a detailed shoppers's guide to cameras, mobile phones ans more in the 2015 Tech Gift Guide -- for those of you still searching for gift ideas for your favorite elder law attorney!
Sunday, December 20, 2015
Back in October, as part of the Bipartisan Budget Act, Congress eliminated a couple of Social Security claiming strategies (§ 831) that have been getting a lot of press (one is known as "file and suspend", the other, "restricted application"). The New York Times ran an article on December 4, 2015 discussing these strategies that are being eliminated and what options remain for individuals planning for their retirement. The End of Social Security Loopholes: What Now? examines the role of life expectancy in deciding when to start collecting Social Security retirement benefits. But, "[f]iguring out the best strategy is difficult because few retirees know how long they will live." The article discusses the variables that go into deciding which strategy is best and notes that these are not "one size fits all" decisions.
The Washington Post also ran an article about the elimination of these two claiming strategies and what that means for individuals planning for their retirement. As one Social Security strategy disappears, consider other smart options focuses on the elimination of the file and suspend strategy and offers 4 tips, including obtaining advice and preparing a budget.
Friday, December 18, 2015
Here's your new vocabulary word for the week -- "immunosenesence" -- and no, my spell checker doesn't recognize it as a word (yet). But the definition is interesting as the word refers to the gradual deterioration of the immune system that may accompany natural aging. Recent studies by researchers at the University of California San Diego and Emory University have focused on why older persons (defined in the study as over age 65) have weaker immune responses to seasonal flu vaccines. In turn, better understanding of the phenomenon may help to identify new approaches to immunizations for older persons.
The San Diego Union-Tribune offers a lay person's breakdown of the studies linked above.
Thursday, December 17, 2015
Following the Third Circuit's ruling in the Zahner case in September 2015, Pennsylvania's Department of Human Services recently issued an Operations Memo providing guidance on how the state will evaluate the effect on Medicaid eligibility of so-called "non-qualified" annuities purchased during the look-back period. The Ops Memo #15-11--01, issued November 16, 2015, provides in part:
Prior to the Zahner decision, in order to be actuarially sound, an annuity had to have a payment term that was equal to the individual's life expectancy. If the annuity was either shorter or longer than the annuity owner's life expectancy found on the Life Expectancy Tables in LTC Handbook Chapter 440 Appendix D, then the purchase price of the annuity was used to determine an ineligibility period for payment of LTC [long term care] services.
Effective immediately, due to the Zahner decision, the definition of "actuarially sound" has changed. Annuities will now be considered actuarially sound if the annuity payment term is either short than, or equal to, the owner's life expectancy.
It will be interesting to see "what happens next" in the world of Medicaid planning. My thanks to Pennsylvania Elder Law attorney and all-round research guru Rob Clofine for sharing the link.
Is a Court-Appointed Guardianship, Using Paid, Private Guardian, "Worse Than Prison"? Latest from Nevada
As we've reported several times over the course of the last year, concerns about cost, misuse of authority, and lack of appropriate oversight of court-appointed guardians for adults in Clark County (Las Vegas), Nevada, have lead to a state-wide inquiry into how better to protect the civil rights of alleged incapacitated persons. According to news reports recent proceedings before the Nevada Supreme Court Guardianship Commission, one judge described past neglect of the alleged incapacitated individual's rights as being "worse than being sent to prison."
A frequent concern raised by family members has been the cost of court-appointed guardians, particularly for individuals or family members who disagree with either the need for a guardianship or the scope of the guardian's powers over the individual or the individual's assets. During the most recent proceedings addressing potential solutions, judges and others argued that a solution to some of the abuses was court-appointment of a lawyer at the outset of any guardianship proceeding to represent the interests of the individual. Thus, there is some irony, that an additional layer of potential costs -- the cost of the appointed counsel -- would be argued as part of the solution. On the other hand, limiting the amount of money such an attorney can charge (whether paid from the individual's estate or from public funds), can have the practical effect of what might be described as "de minimus" representation.
The Nevada proceedings have attracted considerable attention from media nationally -- and from family advocates challenging court-supervised guardianships in other states and who are sharing information about problems and potential solutions. My thanks to Rick Black for sharing news from Nevada.
December 17, 2015 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Legal Practice/Practice Management, State Statutes/Regulations | Permalink | Comments (4)
Wednesday, December 16, 2015
I'm fascinated by technology and I've read several articles about the use of technology in caregiving for elders. With the proliferation of drone use by consumers, I was interested in the December 4, 2015 article in the New York Times As Aging Population Grows, So Do Robotic Health Aides. A robotics prof at the University of Illinois has a grant "to explore the idea of designing small autonomous drones to perform simple household chores, like retrieving a bottle of medicine from another room. Dr. Hovakimyan [the professor] acknowledged that the idea might seem off-putting to many, but she believes that drones not only will be safe, but will become an everyday fixture in elder care within a decade or two." The use of robotic caregivers is viewed as a way to help folks stay at home longer than now.
Can technology or robots be used to combat isolation and loneliness? The article turns to "Brookdale Senior Living, one of the nation’s largest providers of assisted living and home care... [which] is using a variety of Internet-connected services to help aging clients stay more closely connected with family and friends." According to the senior director of dementia care and programs at Brookdale, "there was growing evidence that staying connected, even electronically, offsets the cognitive decline associated with aging."
The article features several technologies under development, not just the drones which Dr. Hovakimyan refers to as “Bibbidi Bobbidi Bots." The article notes that Toyota is even getting into the field, noting that adding artificial intelligence to vehicles to make driving safer and to"make it possible for aging people to drive safely longer."
There are concerns about downsides to the use of such technologies, which are discussed in the article. The article turns to other countries leading the way in these advances and concludes with discussing a number of products currently on the market and how those may compare with in-person interactions.
As reported in the San Diego Tribune, Housing for Gay Seniors Coming to San Diego
A local nonprofit is preparing to build San Diego’:s first low-income apartment complex geared for senior citizens who are lesbian, gay, bisexual or transgender. When the 76-unit complex opens in North Park, San Diego will join Chicago, Philadelphia, Los Angeles and San Francisco as cities that provide this kind of housing.
Such housing is considered crucial because members of the LGBT community often feel unwelcome in ordinary senior complexes, where the older residents tend to be less open to alternative lifestyles.
“The people who will live here paved the way for younger LGBT generations, and many of them are forced back into the closet in traditional senior communities because of a lack of acceptance,” said Delores Jacobs, chief executive of the San Diego LGBT Community Center.
The $27 million complex will be open to all seniors, but the nonprofit building it — Community HousingWorks — plans to create a welcoming environment for LGBT seniors that will encourage them to move in, including on-site supportive services coordinated by the local LGBT Community Center.