Friday, July 26, 2019
Brief Report from Pennsylvania's 2019 Elder Law Institute
The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19. One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law. This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices. She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships. That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships. As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court. I'll write more about these issues and my project soon.
I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania. Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania. In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities. The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times.
Points of strongest interaction included issues surrounding an individual or couple's assets. CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents. Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission. One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from the administrators of the CCRC. A similar question arose in connection with "refundable" entrance fees. In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years. We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods. I can see another article in my future on these topics.