Elder Law Prof Blog

Filial Friday: PA Trial Court Rules that New Jersey's Law Controls Outcome of "Reverse" Filial Support Claim

I've been following for some time an interesting "reverse filial support law" case in Delaware County, Pennsylvania.  A key issue in Melmark v. Shutt is whether New Jersey parents of a New Jersey, disabled, indigent adult son are liable for his costs of his care at a private, nonprofit residential facility specializing in autism services, Melmark Inc., in Pennsylvania. Since most of the modern filial support claims I see involve facilities (usually "nursing homes") suing children over the costs of their elderly parents' care, I describe cases where the facility is suing parents of an adult child as a "reverse filial support" law claim.

In a September 2016 opinion that followed a June nonjury trial, the Pennsylvania trial court used a "choice of law" analysis to determine which state's substantive "filial support"  law controlled the parents' liability. The court ultimately ruled that New Jersey's statutes applied.  N.J. filial support obligations are more limited than those affecting families under Pennsylvania law.  Under N.J. Stat. Ann. Section 44:1-140(c), the state exempts parents over the age of 55 from support obligations for their adult children (and vice versa). By contrast, Pennsylvania does not place age limits on filial support, either for adult children or elderly parents.  See Pa.C.S.A. Section 4603. In the Melmark case, the father was 70 and the mother was 68 years old during the year in question.  The disabled son was 29.

The court decided that New Jersey had the "most significant contacts or relationships" to the dispute. That's classic conflict-of-laws analytical language.  At issue was more than $205,000, for costs of residential services between April 1 2012 and May 14, 2013.

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More on the Reg Change Regarding Pre-Dispute Arbitration Clauses for Nursing Homes

I blogged yesterday about the new and updated regs for nursing homes and highlighted a few changes. One that is getting attention is the reg regarding pre-dispute arbitration clauses, mentioned in yesterday's post. The NY Times ran an article, U.S. to Bar Arbitration Clauses in Nursing Home Contracts offers some examples of individuals who were injured but not able to seek redress in the courts.   The article notes that this is the first significant revision to the FNHRA regs in a while, and also another federal agency moving to limit the use of arbitration clauses. "It is the most significant overhaul of the agency’s rules governing federal funding of long-term care facilities in more than two decades...And the new rule is the latest effort by the Obama administration to rein in arbitration’s parallel system of justice that was quietly built over more than a decade...In May, the Consumer Financial Protection Bureau, the nation’s consumer watchdog, unveiled the draft of a rule that would prevent credit card companies and other financial firms from using arbitration clauses that bar consumers from banding together in a class-action lawsuit." The article also references prior stories by the Times that focused on arbitration, the links to which are available at the end of the story.

Important: CMS Issues FInal Rules on Requirements for LTC Facilities

The Federal Nursing Home Reform Act went into effect back in 1987. Those accompanying regs have been in place a long time. Now CMS has issued final rules that revise the LTC regs.  The official publication date is Oct. 4, 2016.  The regs are being implemented in phases, with phase one going into effect on November 28, 2016.  Here is the Federal Register summary:

This final rule will revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. These changes are necessary to reflect the substantial advances that have been made over the past several years in the theory and practice of service delivery and safety. These revisions are also an integral part of our efforts to achieve broad-based improvements both in the quality of health care furnished through federal programs, and in patient safety.

The regs are over 700 pages and are available here. Here are the effective dates: "Phase 1 must be implemented by November 28, 2016... Phase 2 must be implemented by November 28, 2017 ... Phase 3 must be implemented by November 28, 2019 ...  A detailed discussion regarding the different phases of the implementation timeline can be found in Section B. II 'Implementation Date.'"

42 C.F.R. 483.10 is updated but CMS is "retaining all existing residents’ rights and updating the language and organization of the resident rights provisions to improve logical order and readability, clarify aspects of the regulation where necessary, and updating provisions to include advances such as electronic communications."

There's a new reg, 42. C.F.R. 483.21, "Comprehensive Person-Centered Care Planning" wherein CMS, among other things, is "requiring facilities to develop and implement a baseline care plan for each resident, within 48 hours of their admission,  the instructions needed to provide effective and person-centered care that meets professional standards of quality care."

One of the most watched sections involved the use of arbitration clauses. 42 C.F.R. 483.70 now includes, among other things, the following: "Binding Arbitration Agreements: We are requiring that facilities must not enter into an agreement for binding arbitration with a resident or their representative until after a dispute arises between the parties. Thus, we are prohibiting the use of pre-dispute binding arbitration agreements."

This is just a brief overview of a few provisions. We'll blog about more of them later, but for now, be sure to read the new regs. They're important!

P.S. this post has been updated to correct the publication and effective dates (I was too excited)

Attorney's Representation of 82-Year Old Woman on Slip & Fall Case Leads to Disciplinary Sanctions

I often talk with law students and practicing attorneys about the $64,000 question in representation of older clients. The question is "who is your client?"  It is all too easy with a disabled or elderly client for the lawyer to start taking directions from younger family members -- or even confusing the younger family member's legal issues with the reasons for representation of the older client.  The "family" is generally not the answer to "who is your client?," even if you represent more than one family member.  From the Pennsylvania Board of Discipline of the Pennsylvania Supreme Court we see another hard lesson involving professional responsibilities to communicate with and represent individual clients honestly:

By order dated July 14, 2016, attorney Terry Elizabeth Silva of Delaware County was suspended by the Supreme Court based on her handling of the proceeds of a lawsuit. Silva refused to disburse the funds received, asserting a charging lien on the recovery to which the Disciplinary Board determined she was not entitled.

Silva represented an 82-year-old woman in a slip and fall case. The woman’s son accompanied her to all meetings and conducted many of the communications with Silva on his mother’s behalf. The fee agreement provided for Silva to receive a contingent fee of 33 1/3%. 

The case was settled, and Silva’s staff deposited the check into her operating account.  A month later her office delivered a check for one third of the proceeds to the client’s daughter. Silva withheld a third of the check for her advanced expenses and a Medicare lien of less than $1,000.

While still holding the remaining third of the proceeds, Silva wrote several checks which reduced the balance in the account to $1,852. She made no further distribution over the following two and a half years, until the client filed a complaint with the Office of Disciplinary Counsel and a claim with the Lawyers Fund for Client Security. Silva defended those complaints with a claim she was entitled to a charging lien on the proceeds, based on her representation of the son and his wife in an unrelated matter. She also claimed that the mother authorized the use of the proceeds to pay debts of the son.

The Disciplinary Board rejected the attorney's arguments about why she could assert a "charging lien" against the mother's settlement for legal fees allegedly owed to her by the son. "All in the same family" was not a valid theory.  Different accounts for different clients.  While the original sanction proposed was a one-year suspension for the attorney, after hearing additional concerns about the lawyer, including the "lack of remorse and continued denials of wrongdoing," the Disciplinary Board recommended a three-year suspension from practice -- and the Pennsylvania Supreme Court approved that longer sanction.  The $64,000 question just got a whole lot more expensive for that lawyer. 

My thanks to Dickinson Law ethics guru Laurel Terry for spotlighting this disciplinary matter for us.

 

 

Families Caring for Aging Americans-Briefing Webinar

We blogged last week regarding the release of a new report by the National Academies Press: Families Caring for an Aging America. The National Academies is holding a webinar briefing on September 29 from 1:30-3:00 p.m. edt.

Here is some information about the briefing:

At least 17.7 million individuals in the United States are family caregivers of someone age 65 and older who has a significant impairment. The circumstances of individual caregivers are extremely varied. They may live with, nearby, or far away from the person receiving care. The care they provide may be episodic, daily, occasional, or of short or long duration. The caregiver may help with household tasks or self-care activities, such as getting in and out of bed, bathing, dressing, eating, or toileting, or may provide complex medical care tasks, such as managing medications and giving injections. The older adult may have dementia and require a caregiver's constant supervision. Or, the caregiver may be responsible for all of these activities.  With support from 15 sponsors, the National Academies of Sciences, Engineering, and Medicine convened an expert committee to examine what is known about the nation's family caregivers of older adults and to recommend policies to address their needs and help to minimize the barriers they encounter in acting on behalf of an older adult. The resulting report, Families Caring for an Aging America, provides an overview of the prevalence and nature of family caregiving of older adults as well as its personal impact on caregivers' health, economic security, and overall well-being. The report also examines the available evidence on the effectiveness of programs and interventions designed to support family caregivers. It concludes with recommendations for developing a national strategy to effectively engage and support them.

This 90 minute webinar is free, but registration is required. To register, click here. 

Kindred Health Care Inc. Hit With Sanctions for Failure to Comply with Federal Settlement Terms on Hospice Care

Kindred Healthcare Inc., the nation's largest post-acute care provider (after acquiring Gentiva Healthcare in 2015) recently paid more than $3 million to the federal government as sanctions for inaccurate billing practices under Medicare for hospice services.  That may not sound like a lot of money in this day and age of Medicare and Medicaid fraud cases, right?  After all, North American Health Care Inc. reportedly settled a false claims case with the Department of Justice earlier this month in a rehabilitation services investigation by agreeing to pay $28 million. 

But, the Kindred Health Care sanction is actually a penalty for failing to comply with the terms of a previous multimillion dollar settlement by the feds with Gentiva.  As part of that settlement, the company and its successors agreed to comply with a Corporate Integrity Agreement (CIA).  From the Office of Inspector General, Department of Health and Human Services press release:

It is the largest penalty for violations of a CIA to date, the Office of Inspector General (OIG) said.

 

The record penalty resulted from Kindred's failure to correct improper billing practices in the fourth year of the five-year agreement. OIG made several unannounced site visits to Kindred facilities and found ongoing violations. "This penalty should send a signal to providers that failure to implement these requirements will have serious consequences," Mr. Levinson said. "We will continue to closely monitor Kindred's compliance with the CIA."

 

OIG negotiates CIAs with Medicare providers who have settled allegations of violating the False Claims Act. Providers agree to a number of corrective actions, including outside scrutiny of billing practices. In exchange, OIG agrees not to seek to exclude providers from participating in Medicare, Medicaid, or other Federal health care programs. CIAs typically last five years.

The post-acute care world -- which includes hospice, nursing homes, rehabilitation and home care -- is a tough marketplace.  According to a McKnight News report, Kindred is also closing some 18 sites as "underperforming."  For more on Kindred's operations, including its explanation of the penalty as tied to pre-acquisition practices of Gentiva, see this article in Modern Healthcare, "Kindred Pays Feds Largest Penalty Ever Recorded for Integrity Agreement Violations."

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Retirement Planning for Women

The Wall Street Journal ran an article about retirement planning for women.  The article, Retirement planning for women, offers some specific tips for women in their planning.  Are there a lot of challenges?  Perhaps the biggest one? Getting started.  "If you’re a woman, the bad news is that you face some specific challenges that men don’t. The good news? Women tend to invest and save in a way that bodes well for their retirement success."  Here is a look at their tips: start saving, invest savings, consider carefully before drawing Social Security, and complete an estate plan which includes "[a] financial power of attorney ... [a] health-care power of attorney, for health-care decisions, [a] living will for your end-of-life wishes, [and a] will naming a guardian for minor children." The article also offers a quick quiz on tips for women in retirement planning. Check it out.

Home Care Workers at the Very Heart of Debates about Overtime Pay and Minimum Wage

Home care workers have many different titles and roles, but a common problem for all is the rate of pay.  Many work long "block" shifts of 10 or more hours at a time.  Many are employed by agencies that charge clients $20+ per hour while paying the workers less than half that rate. Home care agencies typically offer no or minimal benefits.   At the same time, for families facing the prospect of care for elderly parents or grandparents, increasing the hourly rate and/or mandating overtime rates can quickly become unaffordable. Home care is often not covered by insurance, especially if the care is not deemed to be "medically necessary." 

The New York Times recently offered a portrait of the problems, beginning with evidence the average hourly rate for home care workers has actually gone down -- from a national median of $10.21 (adjusted for inflation) in 2005 to $10.11 in 2016: 

This helps explain why Patricia Walker, 55, a certified nursing assistant who works for a Tampa home care agency and provides care for two older men — and hasn’t received a raise in five years — must rely on $194 in food stamps each month.

 

“It helps me a lot, because I don’t have to wait for my paycheck to buy food,” she told me.

 

Still, working only 16 hours a week while hoping for more, at $10 an hour, means she can’t afford a place to live. “I would love to be able to put a key in my own door and know this is mine,” she said.

Instead, she pays friends $50 every other week to rent a room in their apartment.

Home care aides, mostly women and mostly of color, represent one of the nation’s fastest-growing occupations, increasing from 700,000 to more than 1.4 million over the past decade. Add the independent caregivers that clients employ directly through public programs, and the total rises to more than two million.

For more, read As Their Numbers Grow, Home Care Aides Are Stuck at $10.11.

Planning: Mid-Atlantic Works-in-Progress Retreat Opportunity for Health Law Scholars

Professor Carl H. Coleman at Seton Hall Law School in Newark, New Jersey, sent us advance news about a works-in-progress retreat scheduled for February 10, 2017.  Professor Coleman explained:

Seton Hall Law School’s Center for Health & Pharmaceutical Law & Policy is pleased to announce the inaugural Mid-Atlantic Health Law Works-in-Progress Retreat, which will be held on February 10, 2017, at Seton Hall Law School in Newark, New Jersey.  The purpose of the retreat is to give regional health law scholars an opportunity to share their work and exchange ideas in a friendly, informal setting.  The retreat is open to anyone with an academic appointment in health law (including professors, fellows, and visitors) in any institution of higher education in the mid-Atlantic area.

The retreat will consist of an in-depth discussion of approximately 5-6 draft papers.  A designated commentator will first provide a 10-15 minute overview of each paper, as well as his or her reactions.  The author will then have 5 minutes to respond, following which all retreat participants will participate in a general discussion of the draft.

Persons interested in having their papers presented should submit a preliminary draft or, if that is not possible, a detailed abstract, no later than November 18 to Carl Coleman at [email protected], using the description "Mid-Atlantic Health Law Retreat" in the regarding line of the emailed submission.   Papers to be presented will be selected by December 9, and final drafts will be due on January 20.  Drafts will be made available to all participants on a password-protected website.

Contact Professor Coleman with any questions. This looks like a fabulous workshop opportunity. Thanks, Carl!

Smarter Driving Technology Makes for Safer Drivers and Safer Drives

Ok, ok, I know I've blogged several times about self-driving cars and how I can't wait to try one.  I know they are being extensively tested. But in the meantime, it looks like I don't have to wait for a self-driving car for drivers to be safer.  Driving tech is already supplementing many driving tasks for drivers as reported in an article published in the NY Times. Tech May Help Steer Older Drivers Down a Safer Road explains that tech is making cars smarter, allowing cars to do things that make driving safer (for the driver, passengers and other drivers).

[S]marter cars ...  can detect oncoming traffic, steer clear of trouble and even hit the brakes when a collision appears imminent.... A few of these innovations, such as blind-spot warning systems, are already built in or offered as optional features in some vehicles, primarily in more expensive models....But more revolutionary breakthroughs are expected in the next few years, when measures such as robotic braking systems are supposed to become standard features in all cars on U.S. roads.

Sure, sure drivers of all ages will benefit from smart cars. But, as the article notes, the application for elders has great value.

[T]hose in their 70s and older are more likely to become confused at heavily trafficked intersections and on-ramps. Aging also frequently limits a body's range of motion, making it more difficult to scan all around for nearby vehicles and other hazards. And older drivers tend to be more fragile than their younger counterparts, suffering more serious injuries in traffic accidents.

"Anything that reduces the likelihood or severity of a collision is really a technology that is primed for helping tomorrow's older adults," says Bryan Reimer, research scientist for the Massachusetts Institute of Technology's AgeLab and associate director of the New England University Transportation Center. "We are moving toward an ecosystem where older adults will increasingly be supported by the technology that may help enhance their mobility."

Thinking about buying a car in the near future. Well consider this.  "The presence of safety technology will be a key consideration for three-fourths of the drivers older than 50 who plan to buy a car in the next two years, according to a recent survey by auto insurer The Hartford and MIT AgeLab. In an indication that priorities are shifting, only one-third of the surveyed 50-and-older drivers who bought a car during the past two years focused on safety technology."

Some of the driving technology is already available, with rear view backup cameras proliferating.  There are cars that can parallel park for the driver, and as seen on commercials, do other tasks to make driving safer. The article mentions several that are either in use, can be added to a vehicle, or will be available before much more time passes.

[T]he auto industry vowed  to make automated emergency brakes a standard feature by September 2022, but it won't be that long before the technology is widely available. Toyota plans to build it into most models, including its Lexus brand, by the end of next year....Cameras on a dashboard screen that show what's behind the car have become commonplace in recent years and will be mandatory on all new cars by May 2018. The equipment is expected to be especially helpful for older drivers with a limited range of motion....Other technology expected to assist older drivers includes automated parking, and adaptive headlights that swivel in the same direction as the steering wheel and adjust the beams' intensity depending on driving conditions and oncoming traffic. ...Robotic systems that temporarily assist with highway driving already are available, most notably in Tesla Motors' high end Model S. The electric-car maker released its Autopilot feature last fall, prompting some Model S owners to entrust more of the driving to the robot than Tesla recommends while the system is still in testing mode. For instance, some drivers have posted pictures of themselves reading a newspaper or book with the Model S on Autopilot, or even sitting in the back seat.

(On that last point, Yikes and should I point out that we're talking about driving technology, not self-driving cars). All of these safety innovations are great, and maybe they will allow people to continue driving longer than they would be able to do without the innovations. Of course, we still want to be sure that unsafe drivers are off the road. At least it looks like I have some cool options while waiting for my self-driving car.

Inspiring Conversations about Aging -- a Florida Example

Karen Miller, a lawyer and former administrative law judge from New York who has become a very good friend, recently shared with me reports about a long-time project of hers, to inspire direct dialogue between generations about aging.  As an engaged resident of a CCRC in Gainesville, Florida (Oak Hammock which is affiliated with the University of Florida), Karen and others in her community embody the notion of active, healthy, and realistic aging.  Karen knows that "aging in the right place" is a better goal than simply "aging in place."  The right place may or may not be the long-time family home.   

Over the course of three days in mid-September, Temple Shir Shalom and Oak Hammock hosted conversations on "Giving and Receiving Care" that were open to the public.  From the Gainesville-Sun coverage of the events:

[Rabbi Michael] Joseph said joking around with his wife about his forgetfulness becomes less funny, as he grows older. “It becomes a real anxiety, it becomes harder to talk about,” Joseph said. “Because I don’t really want to know the answer, part of me.”

 

Saturday’s festivities will address Joseph’s anxiety head-on. The Oak Hammock retirement community will serve as the backdrop to a lecture about age-related cognitive changes. The 3 p.m. non-clinical presentation by guest speaker Dr. Steven DeKoskey of the University of Florida's McKnight Brain Institute will take a look at what is and isn’t normal when aging.

 

[Karen] Miller said that as people age they may need help with numerous things, ranging from simple things like writing a check, to more complicated things, like making medical decisions. “There will come a time, unless you get hit by a car, where your faculties are not as sharp as they were at one time,” she said.

 

Concluding Sunday at the temple, the program will open its doors at 10:30 a.m. to a wider audience spanning at least three generations, Joseph said.

The combination of community hosts, professional caregivers, science-based speakers, and public round tables strikes me as an inspiring model for effective conversations about aging. Well done, Karen.

The Stanford Letter Project

Remember that line from the song "My Way" immortalized by Frank Sinatra, "[r]egrets, I've had a few...." For some people, telling their families how they feel about them, especially at the end of life, can be daunting and not having done so sooner may be a regret.  An ethical will or even the 5 Wishes document can be helpful in explaining things in writing that are too difficult to say. 

I was interested in learning about the Stanford Letter Project with its goal "[t]o help, empower and support all adults to prepare for their future and take the initiative to talk to their doctors and their friends and family about what matters most to them at life's end." So what does this project do? The website explains:

All of us will face the end of life one day. Contemplating one’s own death and doing some basic preparatory work is certainly not an easy task. However, the emotional, physical and the financial toll of not doing so is exorbitantly high. People who do not clearly document their wishes and preferences for care at the end of life are often subjected to futile medical treatments that they neither seek nor benefit from. Their families are burdened by the medical bills accrued from the numerous ineffective treatments many patients get at the end of life. In fact, a large research study showed that 62 % personal bankruptcies are due to medical expenses. Over 75% of the people who became bankrupt due to medical expenses had some form of health insurance (i.e., having health insurance does not protect you and your family from medical expense related financial crises).

A major reason for all these problems is that most Americans don’t like to talk about and prepare for the last phase of life. Our research has shown that  people find it extremely difficult to discuss this important issue both with their doctors and with their friends and family.

We started the Stanford Letter Project in 2015 based on many years of research and discussions with people from various cultural and social backgrounds. We conducted interviews and focus groups in multiple languages with people in the community and talked to numerous patients and their family members as well as health professionals. We found that while almost all doctors agree that it is important for them to have end-of-life conversations with their patients, most doctors struggle with these conversations. We also found that patients from all ethnic backgrounds feel that is is very important for them to have end of life conversations with their doctors and their family members. However, patients do not quite know how to initiate these conversations.  

Based on these research findings, we created the Letter Project tools to help you write letters about your wishes for care in the future.

These letter templates are specifically designed to help you voice the key information needed to help you prepare for the future.  Use the Stanford Letter Project tools today to write to your doctor, your friends, and your family. It is free, easy, and extremely important.

The website includes some video letters to friends and families, as well as to doctors.  There is also a "template" for an advance directive generated from a user's responses to questions as well as a "life review letter" template.

The goal of our Friends and Family Letter template is to help all Americans complete the seven vital tasks of life review while they still can. We designed this project based on years of clinical experience caring for thousands seriously ill patients and families. ... The template was pilot-tested and refined after extensive discussions with patients from diverse cultures and traditions to identify the seven tasks of life review.

There are 7 tasks for a life review, which include:

1. Acknowledge the important people in your life...

2. Remember treasured moments from your life....

3. Apologize to those you love if you hurt them....

4. Forgive those who love you if they have hurt you...

5. Express your gratitude for all the love and care you have received....

6. Tell your friends and family how much you love them... [and]

7. Take a moment to say "goodbye.

Check out the website.

18th Annual CLE: Special Needs Trusts & Special Needs Planning: Early Bird Ends 9/23/16

Stetson's 18th annual National Conference on Special Needs Trusts & Special Needs Planning takes place on October 19-21, 2016 at the Vinoy Hotel in St. Petersburg, Florida.  Early Bird Registration rates end September 23, 2016. The national conference spans two days, with general sessions in the mornings and three tracks of breakout sessions in the afternoons (basics, advance and administration) Information about the conference, including the agenda, speakers, and links to register is available here. (Full disclosure, I'm the conference chair. Hope to see you at the conference!)

Elder Law Specialist Mark Worthington Moves from Private Practice to Full-Time Academia

Welcome to Elder Law Attorney Mark Worthington, CELA, as he makes his transition from full-time practitioner to full-time academic at Western New England School of Law.  Mark, a former president of the Massachusetts Chapter of the National Association of Elder Law Attorneys (NAELA), has been an adjunct law professor for many years at Western New England, but effective this semester, he's now director of the law school's LLM degree in estate planning and elder law and will continue to teach key classes as a full-time professor of law. 

I've had the pleasure of hosting Mark as a National Elder Law Foundation symposium speaker at Penn State's Dickinson Law.  This move will be a big plus for law students in Massachusetts.  We look forward to seeing you are more conferences in the future, Professor Worthington. 

Caring for Caregivers

While we are on the subject of caregivers (in case you missed yesterday's post ....) I was interested in the article published in the NY Times earlier this month on the impact caregiving has on caregivers. After all, it is a 24/7/365 job.  Love and Burnout: Caregivers, Too, Need Care discusses both the emotional and financial costs of caregiving. "Though caregiving can be a profound and moving journey, caregivers’ needs are often overlooked. The health care system is mainly focused on patients; caregivers who are slowly burning out can slip by unnoticed until it is too late." 

We have all seen studies about the physical manifestations of stress, but do we all realize that the physical impact can continue long after the stress is gone? "Researchers have found that the human immune system can be weakened by stress and strain for up to three years after caregiving ends. As a result, caregivers can be more prone to having serious illnesses. Yet they rarely complain."

Caregivers are true superheroes for what they do, but even superheroes can benefit from help (after all many superheroes have sidekicks or other superhero pals!)  The article offers information about help and services available to caregivers,  from information, to support groups, to resources to respite care.

Ever thought of which caregivers might be more affected by the role of caregiving? The article explains that  "[m]en, who generally have smaller networks of friends than women, are at even greater risk. “They are less likely to maintain relationships and seek help,” said Zaldy Tan, medical director of the UCLA Alzheimer’s and Dementia Care Program. 'They’re less prepared for the caregiving role. So they have a higher burden and burnout rate.'"

Burnout is a real thing and manifests itself in a variety of physical symptoms. The article offers that the best way to combat burnout is to have help. "Perhaps the best antidote to burnout, many experts say, is building a team, rather than handling everything yourself." But there is a risk in assuming that the family will automatically pull together. "The best family teamwork involves meeting, talking and sharing responsibility ... One team member, for example, can handle medical appointments, another might be good at preparing meals. 'Have weekly phone calls if you’re in crisis....'"

Regardless of the planning, it's not going to be an easy job to be a caregiver. But it is going to be an important one.

 

Thinking about Consumer Protection, Families, and Older Clients in Banking

I'm currently on sabbatical and working on a couple of big projects. I've been digging deeper into how banks approach consumer protection issues for older customers.  Awareness of the potential for financial exploitation of elders among bankers is clearly at an all-time high.  

One of the practical lessons, however, is that each banking institution does it differently when responding to concerns.  For example, one bank I met with has a system of "alerts" for tellers about prospective transactions, such as where an older customer is accompanied into the bank by "problematic" befrienders. Another bank said that before it could take any action in response to a request made by a valid agent with a broadly-worded power of attorney, the agent would have to be added as a party "on" the account in question.  The latter approach, although understandable on one level, seems to pose the potential for additional problems. One-on-one meetings with high-level officials at major banks makes me realize just how challenging this would be for the average family member or concerned friend of a prospective victim.

Along this line, I recently received news of a timely CLE program.  The Pennsylvania Bar Institute is hosting an "update" program on Consumer Financial Services and Banking Law on October 18, with simulcasts offered in several locations around Pennsylvania.  The Pennsylvania Bankers Association is co-hosting the program.  

Speakers include:

	Hon. Robin L. Wiessmann Secretary, PA Department of Banking and Securities
	Leonidas Pandeladis, Esq. Chief Counsel, PA Department of Banking and Securities
	Jeffrey P. Ehrlich, Esq. Deputy Enforcement Director, Consumer Financial Protection Bureau, Washington, DC

The planned program will include updates on the latest rules affecting consumer protection measures, and -- I suspect -- will likely address some of the "hot" issues, such as the Wells Fargo "mess." 

Related articles

The Mess At Wells Fargo: Winners and Losers In Washington

CFPB Fines Wells Fargo $100 Million

CFPB's Overreach Could Backfire. Just Ask the FTC

Families Caring for an Aging America: New Report from National Academies

The National Academies Press (NAP) has released a prepublication report (uncorrected copy) of a new report, Families Caring for an Aging America.   The prepublication version of the report can be downloaded now as a pdf or read online. Downloading requires a NAP account or selection of the guest option. (Regardless of the method, the download if free).  You can also preorder the report in hard copy now.

The description of the report offers this information:

Family caregiving affects millions of Americans every day, in all walks of life. At least 17.7 million individuals in the United States are caregivers of an older adult with a health or functional limitation. The nation’s family caregivers provide the lion’s share of long-term care for our older adult population. They are also central to older adults’ access to and receipt of health care and community-based social services. Yet the need to recognize and support caregivers is among the least appreciated challenges facing the aging U.S. population.

Families Caring for an Aging America examines the prevalence and nature of family caregiving of older adults and the available evidence on the effectiveness of programs, supports, and other interventions designed to support family caregivers. This report also assesses and recommends policies to address the needs of family caregivers and to minimize the barriers that they encounter in trying to meet the needs of older adults.

The entire 297 page report is likely too long to be assigned in its entirety to students, but portions would be a good addition to reading assignments. The report is also a good resource for students working on scholarly papers on the topic. The report is divided into 7 chapters, the last of which is devoted to discussing the 4 recommendations made by the committee.  Those 4 recommendations:

RECOMMENDATION 1: The committee calls upon the Administration that takes office in January 2017 to take steps to address the health, economic, and social issues facing family caregivers of older Americans.

RECOMMENDATION 2: State governments that have yet to address the health, economic, and social challenges of caregiving for older adults should learn from the experience of states with caregiver supports, and implement similar programs.

RECOMMENDATION 3: The Secretaries of Health and Human Services, Labor, and Veterans Affairs should work with leaders in health care and long-term services and supports delivery, technology, and philanthropy to establish a public private, multi-stakeholder innovation fund for research and innovation to accelerate the pace of change in addressing the needs of caregiving families.

RECOMMENDATION 4: In all the above actions, explicitly and consistently address families’ diversity in assessing caregiver needs and in developing, testing, and implementing caregiver supports.

 

Upcoming Conference to Focus on Dispute Resolution in the Face of "Medical Futility"

On Friday, November 18, 2016, Mitchell Hamline School of Law and Children's Minnesota are hosting a one day seminar on "Ethics, Law and Futility" in Minneapolis.  The target audience is described as "Nurses, Physicians, Social Workers, Lawyers, Patient Advocates, Parents/Guardians or anyone interested in ethics, law and futility."  The premise is intriguing, as explained in conference promotion materials:

There is a knowledge gap between what is presumed as one’s ethical and legal obligations to patients during cases of futility and what actually their responsibility is. This conference will assist in clarifying these issues and provide the audience with tools for managing futility cases.

Speakers include: 

• Thaddeus Pope, Director of the Health Law Institute at Mitchell Hamline School of Law, speaking on "When may you stop life-sustaining treatment without consent?  Leading Dispute Resolution Mechanisms for Medical Futility Conflicts.”

• Emily Pryor Winston, Associate General Counsel at Children’s Hospitals and Clinics of Minnesota, on "Minnesota Law and Medical Futility Analysis."

• Jack Schwartz, Adjunct Professor at the University of Maryland School of Law and Former Maryland Assistant Attorney General, on "The Ethics of Legal Risk." 

For more, see the home page for the symposium, which provides registration materials.

Lunchroom App Work for Elders?

I was reading an article in the Washington Post about a young woman who was bullied at school. Drawing on her experiences, she created an app for kids who don't have anyone to sit with at lunch.  This once-bullied teen has a simple solution so no one has to eat alone in the cafeteria ever again describes this app and her motivation in creating it.

[She] came up with an idea that would allow students a judgment-free way to find lunch mates without the fear of being rejected. She developed an app called “Sit With Us,” where students can sign up as “ambassadors” and post that there are open seats at their lunch table. A student who doesn’t have a place to sit can look at the app and find an ambassador’s table and know they are invited to join it. When signing up as an ambassador, the student takes a pledge that they’ll be kind and welcoming to whoever comes to sit with them.

Kudos to this inventor!

Although we may think of bullying as a problem faced primarily by children and young adults, happening in schools or in cyberspace. Of course, that is not the case.  Elders can be bullies as well.   So I was thinking-this app could have use beyond lunch at a school cafeteria.  What about its use for an event at a senior center, independent living facility, CCRC, ALF or SNF.  It seems it could be incredibly useful in providing a boost to socialization.  I realize not every elder is tethered to her smart phone, but that surely may change over time.  So, what do you think?  Would this be helpful? Is this already being done?

Person Under Limited Guardianship of Person & Capacity to Sign a Deed

Jeffrey Skatoff, Esq. sent me a link to his firm's recent blog post (written by an associate) about a Florida appellate case concerning capacity to sign a deed. I thought this was an interesting case, and wanted to share it with you. Here is the post, Partially Incapacitated Ward Makes Valid Deed

When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian. That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian.  Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened. 

Recently, Florida’s Third District was called upon to review a trial court’s judgment invalidating a deed executed by a ward in Marcinkewicz v. Quattrocchi, 2016 Fla. App. LEXIS 13403.  The facts in Marcinkewicz were as follows:  The Ward’s son moved into her home in 2007.  The son maintained that he had reached an understanding with his mother that she would leave the home to him upon her death in exchange for his agreeing to care for her.  In 2009, the Ward moved into the home of her daughter and son-in-law.  A year later, the Ward was declared incapacitated and her daughter became guardian of her person and property.  Two years later, the guardianship over the Ward’s property was dissolved but a limited guardianship over her person remained. In 2013, the Ward visited her longtime attorney and executed a deed transferring her home to the son-in-law. 

Upon receiving the deed, the son-in-law filed suit to eject the son from the property.  The son counter-sued to invalidate the deed and for other relief.  The trial court found that the Ward lacked capacity to execute the deed and that, as a result, the deed was void.  The trial court further found that because the deed was void, the Ward still owned the property and the son had to vacate the property.

The Third District reversed the trial court’s finding that the deed was void but affirmed its ruling that the son had no rights in the property.  The appellate court began by noting that the validity of the document is presumed and that this presumption can only be overcome with “clear, strong and convincing evidence." (quoting Espriella v. Delvalle, 844 So. 2d 674, 676 (Fla. 3d DCA 2003) (internal citations omitted).  The appellate court noted that the trial court erred in assigning the burden of proving the deed’s validity to the son-in-law/grantee when it was the son who should have had to produce evidence in support of a finding that the Ward lacked capacity to execute the deed. Because the son failed to produce any evidence that the Ward lacked capacity at the time she executed the deed, the trial court’s finding was without evidentiary support.  Because the deed was valid, the son had no rights in the property, equitable or otherwise.  Accordingly, the trial court’s order that the son vacate the premises was upheld.

(citations omitted)