Elder Law Prof Blog

More Resources on Dementia

A friend sent me several recent resources about elders with dementia.  The Hospice and Nursing Home Blog published a video on Doctors’ End-of-Life Language, Impact on Patient-Caregiver Decisions.  The Agency on Healthcare Research and Quality published Nonpharmacologic Interventions for Agitation and Aggression in Dementia.  The pdf of the article is available here. Finally, in February, 2016, this article, Palliative care of patients with advanced dementia was published in UpToDate (which is "an evidence-based, physician-authored clinical decision support resource....")

Thanks to my friend Pamela Burdett for sending me the links to these 3 publications.

Articles on Elders Driving

The most recent issue of Experience, the magazine of the Senior Lawyers Division of the ABA, is focused on elder driving. There are nine articles on the topic, each taking a different focus. The topics include a view from the bench, licensing, psychology issues and technology.  Great resources!

Caregiver Shortage or a Caregiver Crisis?

We have written several posts about the need for caregivers, so this article in the Washington Post is particularly relevant to our classes. I needed to find care for my elderly aunt. What I found was an eldercare crisis ran on March 22, 2013.  The article opens wit h a story about an elder relative who had fallen, again, not a too unfamiliar a story, unfortunately.

It’s true that aging isn’t exactly what it used to be. Thanks to Botox and Viagra and other medical innovations, anyone with some money can look and act 30 at 50 or 50 at 70. Many boomers are working past 65. Mick Jagger is still strutting around. Age is just a number!

But this approach to aging, however empowering, is a lie. Most of us won’t keep going strong until we’re felled by a painless heart attack in our sleep. Life is seldom so kind.

The story continues, the relative was sent home but needing assistance with multiple ADLs, struggled, and ultimately fell again.  "[W]hat happened after showed me how difficult it is for the elderly and their families to navigate health care in this country. Once she got home, [the relative] struggled with everything from eating to dressing to washing. Four days later, I got another call: She’d fallen again, trying to get out of the armchair she was sleeping in because lying flat in bed was too uncomfortable." The author discusses the options explored, but to no avail-no Medicare rehab coverage, LTC insurance wouldn't yet kick in, and no option of living with relatives.  Finding the right home health agency required effort and research to find the right fit of agency that provided the right level of services the relative needed.

The author then learned some reasons why caregivers may be hard to find: "[d]espite the critical need for eldercare, getting the workers to do it is not easy. Sharona Hoffman, author of “Aging with a plan: How a Little Thought Today Can Vastly Improve Your Tomorrow,” (note-we had previously blogged about Professor Hoffman's work)  explained ... that the tedious work of caring for people at home carries risks, such as back injuries from lifting a patient after a bath or dealing with a patient who gets violent or handsy due to dementia. The pay isn’t great; the night caregiver we found for [the relative] confided in her that her take-home pay was about $10 an hour, or minimum wage in California. (We paid the agency who oversaw her $16 an hour.) Unsurprisingly, turnover among these workers is as high as 60 percent."

The article turns to the issue of workers' rights, noting some efforts in California.  There is a balancing act occurring here-workers' rights and affordable care. An Hawaiian state senator has introduced a bill for "universal home care" and some of the presidential candidates have at least acknowledged the issue.

The author's relative has improved and the author acknowledges she's learned some lessons along the way. The relative "no longer needs night care, though we have a plan in place when she does.Even with all the problems that have plagued her in the last 18 months, she remains the woman I hope to be should I make it, mostly unscathed, into my 90s. I may even buy a hat or two. And I’ll definitely have a number of home care agencies on speed dial."

Thanks to my colleague Professor Bauer for sending me the article.

 

Family Finances, POAs, and Telephone Help Lines in the Third Age

Roz Chast's memoir of life with her parents as they aged, Can't We Talk About Something More Pleasant?, uses humor to explore the complicated issues that can arise when aging parents and their adult children try to address physical frailty and financial complexities in the "third age" of life.   Another look, equally realistic and also ruefully humorous, comes from William Power, writing for the Wall Street Journal in "The Difficult, Delicate Untangling of Our Parents' Financial Lives."   Thanks to the WSJ for making this an  unlocked article for digital access! 

Power begins with that ever-humbling attempt to use "help lines" to solve problems by phone:

“No, no, no, don’t transfer me to her again,” pleads my wife.  It is a typically frustrating moment in our family crisis, one that many grown children will have to face, ready or not: We are people in our 50s who are unraveling the finances of parents who can no longer do it themselves.

 

My wife, Julie, is on the phone with the company where her 82-year-old dad had once worked, trying to change the direct deposit of his pension checks to a bank closer to the assisted-living home where he and his wife now live, which is near us in Pennsylvania. Again and again, she is transferred to the person in charge, “Rose.” And every time, the same recording: “This number has been disconnected.”

Power's account is punctuated by practical advice for others, including the importance of teamwork, involving both family members and others, in tackling the issues, as well as the use of key document-based tools, including Powers of Attorney, or as he stresses, "Repeat after Me: POA, POA, POA."  

My thanks to Amy Bartylla, a long-time friend, for this article referral.

 

Medicare Part D Co-Insurance as Percentage?

Kaiser Health News ran a story on March 18, 2016 about co-insurance trends in drug coverages. Coinsurance Trend Means Seniors Likely To Face Higher Out-Of-Pocket Drug Costs, Report Says explains that a new report shows that "Medicare beneficiaries may get dinged with higher prescription drug bills this year because more than half of covered drugs in standalone plans require them to pay a percentage of the cost rather than a flat fee...." This report notes that over half of the Part D covered drugs have a coinsurance payment rather than a fixed copayment. This means greater out of pocket costs for Medicare beneficiaries.  As a result, predicting a beneficiary's out of pocket costs is more difficult.

The report, Majority of Drugs Now Subject to Coinsurance in Medicare Part D Plans is available here.  A pdf of the report is available here.

Creativity -- Thy Name is Senior Living!

From the New York Times, courtesy of reader and Bethesda, Maryland Elder Law Attorney Morris Klein, comes a demonstration of just how "clued in" the world of senior living has become.  A recent article begins with the background of ShantiNiketan in Florida, and continues with other descriptions of creatively-designed assisted living, nursing facilities and day programs serving ethnic communities around the country, including Chinese-Americans:

 

Indian immigrants who came to the United States in the 1960s and ’70s for educational and work opportunities have begun to downsize and contemplate their postcareer years, said Iggy Ignatius, 60, ShantiNiketan’s chairman. “Many people were thinking they’d go back to India, but pragmatically it’s not possible,” he said. “Our children are here. Our grandchildren are here.”

 

In Florida, from the architecture that reminds Dr. Chandran of Chennai, India, to the vegetarian meals and Bollywood dance classes, “we have created a mini-India, a piece of India,” Mr. Ignatius said. The Chandrans moved into their three-bedroom condominium in 2011, paying $250,000, and now they lead yoga classes in ShantiNiketan’s meditation room.

For more, read the always interesting Paula Span's full article,  A New Spin on Senior Living.

Recovering Memories Lost to Alzheimer's?

The Washington Post ran an article on March 17, 2016 about the work on Alzheimer's researchers at MIT have been doing . MIT scientists find evidence that Alzheimer’s ‘lost memories’ may one day be recoverable explains that "[a] new paper published Wednesday by the Massachusetts Institute of Technology's Nobel Prize-winning Susumu Tonegawa provides the first strong evidence of this possibility and raises the hope of future treatments that could reverse some of the ravages of the disease on memory." The research and results were featured in an article in Nature  The abstract explains

Alzheimer’s disease (AD) is a neurodegenerative disorder characterized by progressive memory decline and subsequent loss of broader cognitive functions. Memory decline in the early stages of AD is mostly limited to episodic memory, for which the hippocampus has a crucial role. However, it has been uncertain whether the observed amnesia in the early stages of AD is due to disrupted encoding and consolidation of episodic information, or an impairment in the retrieval of stored memory information. Here we show that in transgenic mouse models of early AD, direct optogenetic activation of hippocampal memory engram cells results in memory retrieval despite the fact that these mice are amnesic in long-term memory tests when natural recall cues are used, revealing a retrieval, rather than a storage impairment. Before amyloid plaque deposition, the amnesia in these mice is age-dependent, which correlates with a progressive reduction in spine density of hippocampal dentate gyrus engram cells. We show that optogenetic induction of long-term potentiation at perforant path synapses of dentate gyrus engram cells restores both spine density and long-term memory. We also demonstrate that an ablation of dentate gyrus engram cells containing restored spine density prevents the rescue of long-term memory. Thus, selective rescue of spine density in engram cells may lead to an effective strategy for treating memory loss in the early stages of AD.

(citations omitted). A subscription or fee is required to access the full article.

Filial Friday: Family Caregiving & Standing Issues for Family Members

The 2012 decision of Health Care & Retirement Corp of Am. v. Pittas from Pennsylvania's Superior Court continues to intrigue law students in its application of a filial support law to compel children to pay the care expenses of their mother.  

The latest example is a 2015 article by Hamline University School of Law student Katie Sisaket, who analyzes the topic from a Minnesota perspective in "We Wouldn't Be Here If It Weren't For Them: Encouraging Family Caregiving of Indigent Parents Through Filial Responsibility Laws."  She concludes:

The advancement of technology has allowed people to live longer than before, but with more health problems. With the government’s programs not anticipating this growth in elder population, the lack of funds will limit an elder person access to the necessary basic care. Filial statutes compelling adult children to provide support to an indigent parent have been around for thousands of years. With proper drafting of a well-defined statute, a filial responsibility law will appeal to family caregivers and further its purpose of encouraging stronger family ties. Therefore, Minnesota should consider adopting its own filial responsibility laws to relieve elder persons with the worry of not being able to access the necessary medical and basic care required. Only by splitting the government’s burden by imposing some duty on adult children will this be possible.

In the meantime, a Pennsylvania-based bankruptcy court case we reported on earlier, In re Skinner, that concluded one brother lacks standing to challenge another brother's discharge in bankruptcy for liability to pay their mother's assisted living fees, was recently affirmed by the Third Circuit.  

In the March 4 decision, the Third Circuit notes that Pennsylvania's filial "support law" does not provide a right of contribution or indemnification," and therefore the only relief is to compel the trial court to "apportion liability amongst the various children."  

The Third Circuit further rejected arguments that the bankrupt son's alleged fraud, in failing to use the mother's resources to pay her debts, was not a claim the brother could make under the Uniform Fraudulent Transfer Act or under a theory of unjust enrichment.  "Because William is not a creditor of Dorothy [the mother], the UFTA does not give him a valid claim. UFTA Section 5107(a).  Thus, because William does not have a valid claim against Thomas, he lacks standing to challenge the dischargeability of Thomas' debts."    

For more see In re Skinner, ___ Fed Appx. ___, 2016 WL 850950 (3d Cir. 2016). 

Kudos to Nike for Accessible Designed Shoes

We don't use this blog to promote a specific product, so please don't read the following as that.  There is some educational value in learning about efforts of world-renowned corporations to provide products for people with special needs. I'd heard Nike had shoes in the works for people with special needs so I wanted to share this article regarding their availability. Nike Expands Shoe Line For People With Special Needs was published in the March 16, 2016 issue of Disability Scoop.   "The company was inspired to develop the unique system after hearing from then-16-year-old Matthew Walzer in 2012. Walzer, who has cerebral palsy, requested more accessible footwear so that he would be able to go off to college without needing assistance tying his shoes."  According to the story, there are several models of the shoe from which to choose. 

More on Florida CCRC's Struggle with State Regulators -- and Workers

Earlier this week, I reported on the Florida Office of Insurance Regulation's actions affecting University Village, a Continuing Care Retirement Community (CCRC) in west Florida.  Additional events are now coming to the surface in media reports, including turmoil with employees over salary and benefits:

Workers from the Nursing Center at University Village made a lot of noise walking a picket line, protesting salary caps and reductions in benefits. This labor unrest comes while the new owners of University Village, Westport Holdings of Tampa, struggle to stop the state from yanking their license and shutting them down.

 

Health care workers represented by the Service Employees International Union are protesting working without a contract since December. Westport Holdings claims through the years the University Village nursing center was overly generous to its employees, and it’s time to reel in costs.

 

“What do they consider to be generous? I’ve been working with them for over 20 years and I haven’t seen $20 an hour yet,” Scott said.

 

Management wants to cap salaries and reduce health care benefits. It contends workers at University Village are paid more than employees at other local facilities.

For more, see News Channel 8's report on Employees Protest Benefit Cuts at Embattled Hillsborough Retirement Community.

Immortality through a Robot Clone?

There was an article in Motherboard last week that intrigued me. ​Companies Want to Replicate Your Dead Loved Ones With Robot Clones explains how many struggle with grief and moving on after the death of someone well-loved. 

Many grieving people feel n emotional connection to things that represent dead loved ones, such as headstones, urns and shrines, according to grief counselors. In the future, people may take that phenomenon to stunning new heights: Artificial intelligence experts predict that humans will replace dead relatives with synthetic robot clones, complete with a digital copy of that person's brain.

 According to the article, one research company has taken the first step down this path, with the goal " to 'transfer human consciousness to computers and robots.' The firm has already created thousands of highly detailed “mind clones” to log the memories, values and attitudes of specific people. Using the data, scientists created one of the world's most socially advanced robots, a replica of [the wife of the] ... founder...." 

According to the article, creating these "mind clones" achieves "[t]he goal ... to capture a person’s attitudes, beliefs and memories and create a database that one day will be analogged and uploaded to a robot or holograph, according to the Lifenaut website. Everything down to a person’s mannerisms and quirks can be recreated."

Why you might ask, would one want a have a robot clone of oneself? According to the article, there are several reasons. "Some users simply like the idea of living forever. Others want to document themselves as a part of human history. Some hope to pass on an artistic project or genealogical information to offspring. Fewer will use it to “memorialize” and “communicate with” the dead...."

Google has also filed a patent, according to the article, that focuses on duplicating a personality and would use, the article notes " a cloud-based system in which a digital “personality” can be downloaded like an app."  The article continues, discussing the pros and cons of moving forward with this technology and debates whether humans can really be replicated.

To reference Aldous Huxley, it's a "brave new world."

Victims Oppose California's Elderly Parole Program

My colleague Becky Morgan shared a good item this week on statistics about the number of elderly inmates, with growth of needy inmates increasing the burden on state prisons.

Another perspective on the issue comes this week via the San Jose Mercury News, reporting on California's Elderly Parole Program:

The Elderly Parole Program was instituted by a federal three-judge panel after a 2013 class-action lawsuit successfully argued that conditions in California's overcrowded prisons, including poor health care, amounted to cruel and unusual punishment. As a result, the court ordered California to reduce its inmate population. The Elderly Parole Program and a realignment program to move nonviolent convicted felons back to county jails are among the solutions. The Elderly Parole Program will be in effect at least until California meets its prison population targets.

 

In Sacramento, prosecutors and victims rights groups have been working to prevent this temporary program from becoming state law. They scored a small victory last week when, after a call from this newspaper, state Sen. Mark Leno, D-San Francisco, gutted Senate Bill 1310, which he introduced last month. The original bill would not only make the Elderly Parole Program state law, but it would also lower the eligibility age to 50 and the time in prison to 15 years.

 

The withdrawal was unexpected and came with little explanation. Leno said in a statement Thursday that the bill would be used as a place holder for "other criminal justice reforms" and that "the bill will not deal with the issue of elder parole."

 

The article reports that since the Elderly Parole Program began in February 2014, more than 1,000 inmates have had parole hearings, with 371 granted parole, 89 deemed "not ready," and 781 denied release.  In the article, the reality of the hearings is seen through the eyes of one victim, who faced the trauma of attending a parole hearing to argue that the man who sexually assaulted her and others some 30 years ago, should serve his full sentence or die in prison -- 141 years.

No easy answers here.  For more read, "California's Elderly Parole Program Forcing Victims to Face Attackers Decades Later."   

LTC Insurance: More $ or Less Benefits?

Kaiser Health News ran a story on March 17, 2016 about long term care insurance policies. Long-Term Care Insurance: Less Bang, More Buck explains how one insured saw her premiums cost almost four times as much if she kept her same coverage. Although an important option for many middle-income Americans, it seems, from the article, that the industry has specific challenges facing it.

[I]insurers botched just about every aspect of the policies they sold in the early days of the industry, said Joseph Belth, a retired professor of insurance at Indiana University known as one of the insurance industry’s toughest critics. They underestimated how long people would live and how long they’d need nursing home care — but overestimated how many people would drop their policies and how much interest insurers could earn on the premiums they banked.

Hemorrhaging money, many insurers left the business. Those that remain are in financial trouble on their long-term care policies. They’re charging far more for new policies, and sharply raising the premiums of old ones.

Not as many companies are offering the coverage as once was and many policy holders may be facing a choice of increased premiums, reducing or dropping coverage. As well, the article notes that many folks don't know the limits of Medicare coverage for long term care.  Fewer people are purchasing the policies, but there are now some hybrid options on the market

Fewer people today are buying traditional long-term care insurance policies, which only adds to insurers’ financial woes. Some are considering newer “hybrid” products such as life insurance or annuities that provide a long-term care benefit, but they’re also expensive and some require a large up-front payment.

That’s why pressure is mounting for state and federal lawmakers to come up with ways to finance long-term care for millions of aging baby boomers. Policy proposals abound, such as requiring people to buy subsidized long-term care insurance, much as they now need to buy health insurance. Other ideas include creating a government-run catastrophic plan or allowing people to convert their life insurance policies to long-term care policies. But all of these would require legislative action, and lawmakers at the state and federal level have been slow to act because of the sheer scope of financing Americans’ long-term care.

Panel on Access to Justice in Montana Highlights Legal Needs of Rural Elders

Legal Service programs around the country have constant challenges in securing adequate funding for operations and I'm often struck by the ingenuity needed to keep programs afloat. I was struck by a recent "Access to Justice" panel report in Montana that highlighted the needs of rural persons, including older persons at or near the poverty line, living in isolated circumstances. Even with pro bono hours contributed by law firms, under-funding remains a serious problem. KTVQ.com from Billings, Montana reported:

One witness, identified only as Vicky, said she fought a two-year battle with Medicare before obtaining a $3,000 scooter that helps her carry on daily life while coping with cerebral palsy. “I didn’t know where to go or what to do,” she said. Vicky was among the lucky few Montanans who get legal help through the Montana Legal Services Association, said Alison Paul, director of the association....

 

Elderly Montanans face similar problems, said Todd Wood, director of the Area II Agency on Aging, which provides services over an area larger than West Virginia. Federal funding for the program has declined in recent years while state funding has slowly increased so that the agency now gets about two-thirds of its funds from the federal government and a third from state government.

 

But those sources account for only $5 million of the agency’s $9 million budget. The rest comes from contributions by clients for such services as meals and transportation. Without those contributions, the program probably would fold within five months, Wood said. He noted that many elderly residents live in deep rural areas, some without electricity or telephones. They often need help with such legal matters as wills, power of attorney and guardianship problems, he said, but they often are unaware of their rights or unable to find help.

 

“Their mailman might be the No. 1 contact in the course of the day,” he said.

 

Providing legal help for seniors is especially critical in Montana, which faces a coming tidal wave of elder care needs, said Gary Connelley, a fulltime pro bono attorney for the Crowley Fleck law firm. By 2020, Montana is expected to be third in the nation in the number of people per capita age 65 or older, he said. But even though Crowley Fleck donated nearly 5,000 hours of free legal help in 2015, Connelley said, it turns away eight or nine of every 10 requests it gets for free legal assistance.

For more read, "Legal Help for Poor,  Disabled Often Hard to Come By."

For another perspective on the intense consequences for entire families from under-funding of legal services, this time on the criminal justice side of the bar, see the New York Times' recent article, "In Louisiana, the Poor Lack Legal Defense."  Are you getting a tax refund this year?  An opportunity to make a tax-deductible contribution to a Legal Aid or Service program near you!

Capacity to Change Health Care Agent?

There was an update recently in the litigation concerning the capacity of Sumner Redstone to change the agent under his health care directive.  The case starting making the papers last fall. The New York Times ran an article on November 25, 2015, Court Filing Challenges Competence of Sumner Redstone. This article noted that a prior companion of Mr. Redstone filed suit claiming that she "was improperly removed on Oct. 16 from control of an advance health care directive that gave her authority over his health decisions." The article summarizes some of the allegations made in the petition by the companion.  A series of other articles followed, two of which are referenced here.

The second article referenced here ran in the Times on February 29, 2016.  Sumner Redstone Competency Case Will Go Forward notes that the case is scheduled for trial in May of 2016. The 21 page ruling discussed in the article outlines the two sides' dispute.  The article notes that Mr. Redstone was at one time estranged from his daughter, although the article indicates she notes a repair of the relationship.  The article quotes the judge: "[d]uring the hearing, Judge Cowan remarked on Mr. Redstone’s notable absence from the legal battle. Notoriously outspoken and combative at his prime, Mr. Redstone has not appeared before the court or submitted a statement of his own. “There are a lot of things that have been said about what Mr. Redstone wants,” Judge Cowan said, “'but unfortunately I have no declaration from him.'”

The third article, published March 18, 2016 in the New York Times gives an update. Sumner Redstone’s Medical Records to Stay Private, Judge Rules reports that some 15 documents will be unsealed but the rest remain confidential. The judge explained that "the medical records would remain sealed because the case was a personal matter centered on Mr. Redstone’s medical issues, not a case involving his public business dealings." The trial is scheduled for May 6 and depositions will be taken in April.

There are a number of other articles reporting this story for those who are interested in learning more about this case.

Florida Governor Signs Second Wave of Reform Laws for Public and Private Guardians

On March 10, 2016, Florida Governor Rick Scott signed into law additional rules for the state's use of guardians. The move comes on the heels of a first wave of reforms enacted in 2015. 

The two waves of legislation follow media reports and public protests in specific locations in Florida, including Palm Beach and Sarasota. The latest law establishes a new state-wide Office of Public and Professional Guardians, and includes directions that the Office establish a system for appointment and monitoring of trained professionals, to serve where necessary as limited guardians, guardian advocates or plenary guardians.  Such "public" guardians are intended to be a last option, when family members are inappropriate, unable or unwilling to serve. 

In addition to the legislative actions, there are reports of court-directed changes to address potential conflicts of interest that could reduce the incentive for critical review and oversight.  For example, in Palm Beach, media reports put a spotlight on relationships between judges and lawyers in that county and especially on one judge's spouse, a lawyer who often received court-appointments and who was criticized for billing and accounting practices in some cases where she was the court-appointed guardian. 

For earlier reports on Florida's guardianship history, see this Blog's report on "Florida to Consider Establishment of Office of Public and Professional Guardians."

For a longer perspective on the recognized need for more effective state systems for guardianship review, see the GAO report (11-678), released in 2011, that warns that "Given limited funding for monitoring, [state] courts may be reluctant to invest in [better] practices without evidence of their feasibility and effectiveness."  See also GAO 2006 report (06-1086(T)), titled "Guardianships: Little Progress in Ensuring Protection for Incapacitated Elderly People."

Further, for findings and recommendations made to the Uniform Law Commission following a summit in 2011, see University of Missouri Law Professor David M. English's report, "Amending the UGPPA to Implement the 3rd National Guardianship Summit."

Related articles

Seniors Could Get Protections From Guardian Wrongdoing

Old and Behind Bars

We have previously written about the topic of elder inmates and the implications for prisons with the graying of the prison population. Here is one more story on the topic, published March 17, 2016. Pew Charitable Trust's Stateline (which "provides daily reporting and analysis on trends in state policy....") ran the story, Elderly Inmates Burden State Prisons.

Nearly every state is seeing that upward tick in elderly state prisoners. In Virginia, for example, 822 state prisoners were 50 and over (corrections officials usually consider old age for prisoners to begin at 50 or 55) in 1990, about 4.5 percent of all inmates. By 2014, that number had grown to 7,202, or 20 percent of all inmates.

For state prisons, the consequence of that aging is money, more and more of it every year. Health care for aging prisoners costs far more than it does for younger ones, just as it does outside prison walls. Corrections departments across the country report that health care for older prisoners costs between four and eight times what it does for younger prisoners.

In terms of reducing the number of elder inmates, according to the study, some states are using diversion programs, early release or compassionate release.  We all have heard about increasing longevity, but that doesn't necessarily explain the rise in elder inmates. The story notes that correctional personnel offer two factors to explain this rise: "[o]e is a steady increase in the rate of older adults entering prison. The second, and more potent, factor is changes enacted in the get-tough-on-criminals 1990s that resulted in longer prison sentences."

Knowing about the physical limitations some may have as they age, one can only imagine the accommodations prisons have had to make, including the use of "ramps and shower handles and ... other physical modifications. Many prisons have had to create assisted living centers with full-time nursing staffs.... In addition, at least 75 U.S. prisons ..., provide hospice services for dying prisoners...."

One prison mentioned in the story has an ALF, but the waiting list is such that prisoners must need assistance with 2 or more ADLs to be considered. Poor health when entering prison is not unusual. And being old and in prison may be even tougher than for younger inmates.

Prison is a particularly treacherous place to get old. Getting to a top bunk is difficult for many aging prisoners, as is climbing stairs. Hearing loss, dementia and general frailty can make it difficult to comprehend or obey rules. And being infirm in an institution full of young predators can make older prisoners vulnerable. “If there’s an old lion or gazelle... the young ones are going to take advantage.”

Once they get out, finding a place to go becomes another challenge according to the article. Some states have taken different approaches to deal with the graying prison population, from financing the facilities that provide the needed care (such as a dementia unit in the prison) to  contracting with a private facility to provide the care to "geriatric conditional release."

And what about the likelihood of reoffending?  "Studies have found that older ex-offenders are less likely than younger ones to commit additional crimes after their release. But politicians and the public don’t seem willing to release former murderers, rapists and sex offenders, even though they are decades removed from their crimes and physically incapable of repeating them...."

Florida Authorities Issue Suspension Orders for CCRC in Tampa

On March 16, 2016, the Florida Office of Insurance Regulation issued suspension orders affecting University Village, a Continuing Care Retirement Community (CCRC) in Tampa, Florida. Long-Term Living publication reports:

The first order states the facility was acquired illegally. IMH Healthcare, LLC, the general partner of the new ownership, does not have approval to operate as a licensed CCRC provider.

 

The second order makes several allegations against University Village for violating provisions of Florida’s Insurance Code for:

• failing to comply with the OIR’s target examination and filing false information;

• failing to fulfill statutory and contractual obligations to residents, estates of former residents and prospective residents, including failing to pay more than $4 million in refunds owed to residents;

• continuing to accept new residents while being financially insolvent; and

• engaging in fraudulent or dishonest management practices.

For more on the OIR action, read Tampa Times coverage, "Florida Officials Move to Suspend  Tampa's University Village Retirement Home." 

The events that led to this state action are somewhat unusual. For earlier reports on the long-simmering issues, see Channel 8 News Report from September 2015: "Owner Claims, State Lying, Retirees Suffer."   See also a Tampa Bay Times article from February 2015, "State Looks into Alleged Financial Problems at Tampa Retirement Community."

Does California's New "Revocable Transfer on Death (TOD) Deed" Increase Risk of Elder Abuse and Estate Costs?

Colleagues in California recently shared with me information on California's adoption of statutory recognition of "Transfer on Death Deeds" or TODs under AB 139.  The law was signed by the Governor on September 21, 2015 and became effective on January 1, 2016.  The law includes "simple" forms, both for establishing the "revocable" transfer of title, and for any "revocation" of such a deed.  Proponents of the legislation cite simplicity and low cost as advantages of using such deeds. The legislative history for the law explains:

The bill would provide, among other things, that the deed, during the owner’s life, does not affect his or her ownership rights and, specifically, is part of the owner’s estate for the purpose of Medi-Cal eligibility and reimbursement. The bill would void a revocable TOD deed if, at the time of the owner’s death, the property is titled in joint tenancy or as community property with right of survivorship. The bill would establish priorities for creditor claims against the owner and the beneficiary of the deed in connection with the property transferred and limits on the liability of the beneficiary. The bill would establish a process for contesting the transfer of real property by a revocable TOD deed. The bill would make other conforming and technical changes. The bill would require the California Law Revision Commission to study and make recommendations regarding the revocable TOD deed to the Legislature by January 1, 2020.

Critics of the law, including California Advocates for Nursing Home Reform (CANHR), warn that despite the "simple" label, the appropriate use of such transfers in estate planning is anything but simple, and such deeds pose another opportunity for undue influence and manipulation of elders.  

The spring issue of CANHR's Advocate newsletter (available via subscription, following a "donation" to the organization) further comments:

It is important to note that thousands of California citizens who are 55 years of age or older and who have recently signed up for health care under California's Medic-Cal expansion program will now have their estates subject to Medi-Cal recovery when they die. If their homes were transferred before their deaths, transferred to an irrevocable trust or if they transferred the property and retained an irrevocable life estate (another cheap, but effective way to transfer property) there will be no estate claim on the home.  But, because the [new law's] TOD is revocable and the transfer and the transfer of the property under a TOD does not occur until the death of the owner, these TODs are subject to estate recovery, which means that those same low-income elders, who are likely to execute TODs will also be more likely to be on Medi-Cal and thus [inadvertently] subject their estates to recovery.

CANHR is "embarking on a campaign to educate consumers about the impact" of the new California law.

Too Old to Be Indiana Jones??

I was mulling over some recent press surrounding the announcement about the 5th Indiana Jones movie, starring Harrison Ford.  The articles I saw were stories about Harrison Ford's age as far as playing the character.  I first saw an article in The Guardian, titled Indiana Jones and the Tide of Ageism: why such a reaction to the fifth film?  The Guardian article reported on the reactions regarding Mr. Ford's age: "[y]et the bulk of the backlash to the announcement instead concerned Ford’s age: 73 at the moment, 77 when the movie will be released in late summer 2019. The Noël Cowards of social media were swift to deploy their finest...."  The article then includes some tweets where references were made (suggesting other movie titles that are pointed references to his age).  I wondered how wide-spread these social media remarks had become, so I went looking for a few other articles, and found this one from USA Today, The world has loads of fake titles ready for 'Indiana Jones 5' which reports on more tweets and notes "[n]ow, Indy has never fought off pits of snakes in the digital age, therefore we welcome him to the future with a host of crowd-sourced titles for the currently untitled Indiana Jones 5. (Spoiler: ageism affects men too.)"  I liked this statement in the Guardian article "[a]ll of this can be done just as easily at 77 as 37. Indeed, it could also be achieved at 87. Just as academia is not a young person’s game, neither is archeology."

Did I miss these types of stories when Mr. Ford reprised his Han Solo role in the most recent Star Wars movie?

All I can think is hmmm....