Elder Law Prof Blog

Are In-Law Apartments the Answer to Housing for Elders and Folks with Disabilities?

The Boston Herald addressed housing needs in this article, Massachusetts advocates say in-law apartments will help older adults, people with disabilities.   The article advises that "[t]he region’s restrictive zoning laws around accessory dwelling units, or in-law apartments, are being reexamined by lawmakers and advocates who say easing up would be a game-changer for older adults or residents with disabilities."  The author of the bill noted specific provisions of the bill apply to elders as well as those with diabilities, and allows for a special need trust "for those with disabilities 'so an owner could create a long-term housing plan for after they passed away to allow their child to stay there....'" A companion bill has also been filed in the Massachusetts Senate. Another bill has broaden the regulation of accessory dwelling units, because as noted in a "2019 study ... that only 37 of 100 of the communities closest to Boston allow for ADUs to be rented out. Another 31 municipalities allow for temporary ADUs for family members or caregivers. The remaining 32 communities have no zoning allowances for ADUs at all."

Consider the role of zoning ordinances not only on the availability of housing, but how it impacts housing specifically for elders and individuals with disabilities.

Aging, Health, Equity, and the Law Conference

Registration is now open for the Aging, Health, Equity, and the Law Conference at Touro Law.  Here's the info and relevant links:

Touro College Jacob D. Fuchsberg Law Center is pleased to host the virtual Aging, Health, Equity, and the Law Conference on September 13, 2021. The conference theme focuses on structural and systemic questions about discrimination and equity that older adults experience, and on policies recognizing these different challenges and promoting equity.

The keynote address will be delivered by Professor Nina Kohn, Syracuse University College of Law, and Distinguished Scholar in Elder Law, Solomon Center for Health Law & Policy, Yale Law School. Touro Dean Elena Langan and Provost Patricia Salkin will speak in the plenary session.

Attendees can choose among engaging presentations and discussion groups in concurrent tracks. The conference will provide opportunities for connection with networking and speed mentoring sessions. There is no registration fee for this online conference. New York CLE credit will be available. We hope that you can join us.

Conference registration: https://tourolawcenter.wufoo.com/forms/aging-health-equity-and-the-law-registration/

Conference program: https://bit.ly/3iUFiA1

For conference updates, please visit www.tourolaw.edu/ahelc.

Rental Assistance for Older Adults

With the eviction moratorium expiring in just a couple of days, we need to realize that housing insecurities impacts all age groups.  It's timely that the Consumer Financial Protection Bureau (CFPB) just released The Rental Assistance Finder. The website allows one to search for housing assistance by location, provides info on various topics, including about help in paying rent, payment agreements, and renter rights.

In addition, the National Center on Law and Elder Rights recently offered a training, Emergency Rental Assistance Programs and Other Tools to Prevent Evictions of Older Adult Tenants. Accompanying this training is the materials, Emergency Rental Assistance Programs & Other Tools to Prevent Evictions of Older Adult Tenants, CHAPTER SUMMARY • June 2021. This will be extremely helpful with the eviction moratorium expiring in days.

 

Filial Friday? Court Holds Son Liable for Attorneys Fees Incurred While Securing Medicaid Coverage for Father's NH Care

Pennsylvania courts use "filial" responsibility laws in, shall we say, creative ways, especially when they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents' nursing home care.  One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order  to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had transferred some $100k of her mother's funds to herself using a "valid" power of attorney, instead of paying the nursing home.

It probably doesn't make the court any happier if the defendant/child is also a lawyer.  

In the latest Pennsylvania decision decided by the Court of Common Pleas in Montgomery County,  Coates v. Salmon, No. 2018-16878, both the plaintiffs and the defendant are lawyers.  The trial court was asked to determine whether a son was personally liable for attorneys fees incurred when the son "engaged" another attorney, one experienced in Medicaid issues, regarding a penalty period assessed against his father.  The penalty made his father ineligible for 296 days in Medicaid funding for his nursing home care.  The lawyer was able to negotiate a reduced penalty period, with a successful argument that certain pre-admission transfers were not made in anticipation of applying for Medicaid.  The settlement reduced the dollar effect of the penalty by more than $68,000. 

Nonetheless, the son declined to pay the attorney his requested fee of $7,606, arguing there was no contract as the attorney had failed to comply with Pennsylvania Rule of Professional Responsibility 1.5(b) that requires "the basis or rate of the fee" to be "communicated to the client in writing, before or within a reasonable time after commencing the representation."  The lawyer-son seemed to be arguing, at least indirectly, that the only fee he'd "agreed" to pay was a $500 up-front "consultation" fee.  

The court agreed with the defendant-son on the contract issue, but granted the full sum of the requested fees as "reasonable" under a theory of quantum meruit.  And that's where Pennsylvania's filial support law came into play to support the court's decision on the son's liability:

Mr. Salmon [the defendant/son] contended, however, that any claim in quantum meruit could be asserted only against his Father, and not against Mr. Salmon personally. The argument was that Father was liable to the Nursing Home for any services not reimbursed by Medicaid and Father was therefore the sole beneficiary of the substantial reduction in the penalty.  It is true that to establish a claim in quantum meruit against Mr. Salmon, Plaintiffs [the Elder Law attorney and his firm] were required to show that he benefited from Mr. Coates's services. . . . Plaintiffs clearly met that requirement, however, because Mr. Salmon himself would have been liable to the Nursing Home for the $86,786 penalty if it had not been successfully diminished by Mr. Coates.  

 

The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . . .

 

This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment. . . . It is thus clear that without the reduction of the penalty to a relatively trivial sum, Mr. Salmon would have been liable for -- or, at the least, substantially at risk of liability for -- the amount of Nursing Home fees denied by Medicaid.  

 

Further, the imposition of liability on Mr. Salmon in quantum meruit is fully consistent with principles of equity. The evidence clearly showed that Mr. Salmon, in engaging Plaintiffs' services, understood his obligation to pay for those services. . . . And, most significantly, in Mr. Salmon's letter of May 6, 2016, responding to Plaintiffs' bill, he disputed the reasonableness of Mr. Coates's fees and the quality of his services, but he never suggested that Plaintiffs were billing the wrong person. . . . [I]t was compelling evidence that Mr. Salmon understood his responsibility to pay Plaintiffs' legal fees and that his later contention that only his Father was responsible was a post hoc excuse for his unwillingness to pay.

The detailed, well-written opinion dated June 23, 2021 is available at the link above, and the case is on appeal to Pennsylvania's intermediate court of appeals, the Superior Court.  In Pennsylvania, trial judges have the opportunity to write their full opinion, rather than just their final decision, after a party has appealed the ruling and after that party has identified all claims of errors.  In my experience, a detailed, well-written Pennsylvania trial court opinion has a good chance of being affirmed on appeal. For an additional perspective on this case, see the Elder Law Answer summary here.  

Reminder! Here is Program for Upcoming Aging, Health, Equity & the Law Conference at Touro

Here is a link to the full schedule of speakers and topics for the virtual conference on "Aging, Health, Equity and the Law" hosted by Touro Law College on Monday, September 13, 2021.  The program runs from noon to 6:15 and registration is free.  Highlights include:

• 12:20 Keynote Address 

    Nina A. Kohn, the David M. Levy Professor of Law and Faculty Director of Online Education at Syracuse  Law, and the Distinguished Scholar in Elder Law for the Solomon Center   for Health Law & Policy at Yale Law School.

• Afternoon Tracks on Different Topics, including (you will have other great options too, so I encourage you to look at the full schedule linked above!):  

        1:00 "Property Law for the Ages," by University of Chicago Law Professor Lior Strahilevitz 

        1:30 "Allocating Scarce Medical Resources During a Public Health Crisis:  Should Age Matter?" by Houston Law Center Professor Jessica Mantel

        2:00 "Anti-Racism in Nursing Homes," by Elizabeth Chen, Acting Assistant Professor, NYU Law

        3:00 "Incorporating Cultural Sensitivity in Elder Law Courses", by Richard Kaplan, University of Illinois Law

        4:00 "End of Life, Elder Abuse, and Guardianship: An Exploration of NY's  Surrogate Decision-making Framework," by Deirdre Lok and Tristan Sullivan, Counsel at the Weinburg  Center for Elder Justice

Registration (Free!)  is here, and New York CLE credits are available.  

Rent or Own?

The housing market in St. Pete is ridiculously hot right now---I mean ridiculously hot and I've heard from friends that it's happening in other places as well. So this recent Washington Post article, Demand rises among seniors to rent rather than own in active-adult communities, seemed incredibly timely. "While properties restricted or targeted to seniors have always been available, a newer option is to rent an apartment, villa or single-family home within an active-adult community. These communities are designed for younger residents who want plenty of recreational amenities and opportunities to socialize with people in their age group of 55 and older."

Here's some interesting data from a consultant interviewed for the article. “The average age of residents in independent-living facilities used to be in their 70s and in recent years they’re in their 80s. Developers wanted to ‘down-age’ the residents in their communities so they would stay longer. The typical renter in an active-adult community now is a divorced or widowed single woman in her mid-70s ...."  The article covers the pros and cons of renting, the flexibility, affordability, the soaring costs of buying a home, rent increases, etc.  The article discusses various approaches by the developers in developing and offering rental units within these communities.  

Needed Changes to Federal Policy for Direct Care Workforce

PHI recently released a new report, Federal Policy Priorities for the Direct Care Workforce. This excerpt from the introduction sets the stage

Throughout the country, millions of direct care workers—home care workers, residential care aides, and nursing assistants—ensure that older adults and people with disabilities have the support they need across care settings. The COVID-19 crisis has reinforced the enormous value of these workers, and government officials have rightfully deemed them “essential” during this period—one of the greatest truisms ever publicly affirmed about this workforce. Unfortunately, the quality of direct care jobs does not reflect their essential contribution. These jobs are often characterized by inadequate compensation, limited training and advancement opportunities, long-standing inequities, and a general lack of recognition and support. As a result, employers struggle to recruit and retain workers during a time when the rapid aging of this country continually drives up demand for these workers— with many workers opting for modestly better jobs in fast food and retail. Without enough workers willing to take these jobs, consumers are forced to go without the services they need, and family caregivers are left without support and respite.

The report focuses on eight categories, providing data, discussion and recommendations for each category.  The categories cover financing, compensation, training, workforce interventions, data collection, direct care worker leadership, equity, and public narrative.

The report concludes with a call for action:

Federal leaders across the board can make this vision a reality by prioritizing direct care workers and investing in long-term care financing, compensation, training, workforce interventions, data collection, direct care worker leadership, equity, and the public narrative. We have always believed that quality care is rooted in quality jobs—now is the time for a federal strategy that brings this mission to life.

Is Shared Decision-Making A Better Route for Effective Communication?

Elizabeth Moran, a relatively new staff attorney for the ABA's Commission on Law and Aging, has an interesting article in the latest issue of Bifocal, Vol. 42, Issue 6 (July-August 2021).  Moran outlines several key recommendations made by the National Guardianship Network during their May 2021 national Summit.  She points to two of the 22 recommendations that bear on "effective communication" for persons with disabilities, especially when involved in court proceedings that may affect any determination of "legal capacity."  

Recommendation 1.2 advocates for courts and state authorities "must ensure that all judicial proceedings" that can impact a determination of an adult's legal capacity must provide "meaningful due process" which includes respect for the individual's "preferred communication accommodations."  

Recommendation 2.4 provides that federal and state authorities "should recognize that supported decision-making can be a reasonable accommodation under the Americans with Disabilities act of 1990, as amended, in supporting an individual in making their own decisions and retaining their right to do so."

Moran acknowledges there is weak understanding within some courts for how supported decision-making will work, even as she advocates strongly for its use.  She writes:

While there is growing awareness of “supported decision-making” (SDM), particularly as an alternative to guardianship, SDM does not have a universally accepted legal definition. It is, however, becoming a more commonly understood concept of integrated supports which honors an individual’s integrity of choice with the underlying principle that, with enough appropriate supports and services, nearly every individual has the capacity to make decisions. When people use SDM as a communication accommodation, they use family members, friends, professionals, and others they trust and who know them well to help them understand the situations and choices they face, but with the ultimate choice left to the adult. This eliminates a substitute decision-maker and maximizes autonomy for the individual who may need communication supports for speaking, reading, writing, or understanding in order to meaningfully participate. The need for this kind of support necessarily includes and can provide for meaningful participation in court services, programs and activities.

For more on this important topic, read Moran's full piece, "Something to Talk About: Supported Decision Making and Access to Justice for All."

Creativity and Healthy Aging

The Washington Post recently published an article about ongoing research into the role of creativity in both longevity and healthy aging, Creativity may be key to healthy aging. Here are ways to stay inspired. "Studies show that participating in activities such as singing, theater performance and visual artistry could support the well-being of older adults, and that creativity, which is related to the personality trait of openness, can lead to greater longevity." However, creativity isn't limited to the arts.  Not sure what it means?  The article offers some ideas, including travel,  daydreaming, being playful (and childlike, but not childish :-)), applying your knowledge,  meditating, meeting your challenges, playing brain games, and exercise.  So go out and have a little fun!

When I'm 64 Course

Washington University St. Louis Institute for Public Health has some interesting programs, including the Center for Aging. One program (actually, a course)  is featured in the article, When I’m 64: What will our future be? . Here's how the course is described: 

Beginning August 30, students enrolled in the “When I’m 64” course ... will work with multidisciplinary faculty and graduate students, local organizations and experts in aging to learn how they can help transform society as they age. The course features lectures, activities and small group discussion, and interaction each week in class with older adults from local organizations like STL Village, a local non-profit that “assists people 50+ to age in their own homes with 24/7 access to a full range of activities and support services for safe and socially-connected living.”

For more info about the course, click here and here

PS-is the song now stuck in your head?

UVA Law Professor Naomi Cahn: Why Conservatorships Like the One Controlling Britney Spears Can Lead to Abuse

 Prolific writer Naomi Cahn, who in 2020 moved from George Washington to University of Virginia School of Law as a distinguished professor and director of UVA's Family Law Center, has a new commentary on the potential impact of the Britney Spears' litigation challenging her California-based conservatorship.  Professor Cahn observes at the outset:

Spears’ case is unusual: Conservatorships are typically not imposed on someone who doesn’t have severe cognitive impairments, and Spears has toured the world, released four albums and earned US$131 million, all while deemed legally unfit to manage her finances or her own body.

Despite the unique circumstances of Ms. Spears' circumstances, her case demonstrates the lack of national data tracking such "protective" proceedings.  Professor Cahn writes:

Broad powers and “anemic” oversight make conservatorships subject to multiple forms of abuse, ranging from the imposition of unnecessary restrictions on the individual to financial mismanagement. Nothing can be done if no one finds out about the abuse.

 

A 2010 U.S. government report identified hundreds of allegations of physical abuse, neglect and financial impropriety by conservators. Most of them related to financial exploitation, and that, in turn, often meant that the victim’s family was affected, losing not just expected inheritances but also contact with the person subject to the conservatorship.

 

A 2017 New Yorker article on abusive guardians highlighted the case of April Parks, who was sentenced to up to 40 years in prison for financial conduct related to numerous conservatorships she handled. She was also ordered to pay more than half a million dollars to her victims.

 

But beyond these anecdotes, no one even knows the magnitude of the problem. That’s because conservatorships are subject to state law, and each state handles the imposition of them as well as data collection differently. And a 2018 Senate report found that most states are unable to report accurate data on conservatorships.

Professor Cahn sees Britney Spears' case as generating a national outrage that was missing from earlier anecdotal indications of problems for older adults trapped in "protective" proceedings.  She concludes: 

Spears may soon find herself free of her conservatorship. Regardless, her situation has already put a spotlight on the potential for abuse – and it may lead to a better system for those who genuinely need the assistance.

Heat Wave Impact on Elders

We have all heard about the shockingly high temperatures out west.  The full impact is yet to be determined, but it is a life-threatening event.   Most Oregon heat wave victims were elderly, had no central AC gave us some data about this tragedy.

A preliminary report by Oregon’s ​Multnomah County found that a majority of the deaths reported during the record-breaking heat wave that began late last month were elderly men who lived alone and did not have central air conditioning....In Portland, which is in Multnomah County, from June 25 and June 28 the city reached triple-digits, even hitting a high of 116 degrees...The report examined deaths from June 28 through July 9. The Multnomah County Medical Examiner’s Office suspected hyperthermia in 71 deaths during this time. The report examined 54 cases where deaths were formally ruled as hyperthermia....Of those 54 deaths, 81.5 percent were ages 60 and older and 90 percent were white. The preliminary data states that 63 percent were males and 78 percent lived alone.... No one who died had central air.  (emphasis added)

With climate change, this isn't the first environmental tragedy, nor will it be the last.  

Loss of Empathy and How Such Changes Affect Caregiving Relationships (and Can Inadvertently Affect Law-Related Matters)

During the pandemic,  as our caregiving relationships have probably become more intense because of the physical restrictions on travel, socializing, eating out, etc., I've had time to observe and think more about "empathy."   For several years, even before Covid-19 changed social patterns, I've heard friends and family members who are serving as caregivers talk about frustrations they are experiencing with "their" older persons, not just because of increasing physical needs, but because of changes in personality.  While a loved one's confusion and memory problems are typically associated with Alzheimer's Disease and other neurocognitive impairments, I also notice how often the caregivers can "forgive" the problems associated with those domains, but are enormously impacted if their loved one no longer is "nice" or no longer seems to be interested in, or cares about others' moods or needs.  

Loss of empathy is a documented phenomenon in aging generally, and in neurocognitive impairments specifically.  At the same time, loss of empathy seems to be rather weakly studied, or perhaps, more accurately, rather weakly understood.  

Brief excerpts from a review of some recent literature on loss of empathy:

• "Early loss of empathy is one of the core symptoms of behavioral-variant frontotemporal dementia (bvFTD), which is often diagnosed when people are in their 50s.  In contrast, empathy remains relatively intact in people with Alzheimer's disease (AD).  People with bvFTD are often unaware of the impact of their behavior on others, causing strain in close relationships.  The [2016] study conducted by NeuRA researcher Dr Muireann Irish, found that both the ability to understand other people's emotions (cognitive empathy) and to share in other people's feelings (affective empathy) were decreased in people with bvFTD.  People diagnosed with Alzheimer's however, retained the capacity for affective empathy." (from a 2016 report by NeuRA, an independent, not-for-profit research institute based in Sydney, Australia).  
• "The question of how aging impacts empathy has important implications for public health because reduced empathy has been associated with greater loneliness, depression, and poorer relationship satisfaction. Socioemotional selectivity theory ... highlights the importance of emotional meaning for older adults, and this typically takes the form of spending time with close others. Thus, if older adults experience decreases in empathy, this could have a significant, negative impact on their well-being." (from Preliminary Conclusions: State of the Research on Empathy in Aging, in Janelle Beadle and Christine E. de la Vega's article on "Impact of Aging on Empathy: Review of Psychological and Neural Mechanisms" published 2019 in Front Psychiatry).

How do changes in empathy impact decision-making, including decisions about pre-death gifts and post-death bequests?  If differences in the ability to empathize with others are associated with a disease process, should that mean that any corresponding change in gifting could (or should) be legally impacted?  Is loss of empathy a component of reduced legal competency or legal capacity?  

New Report on Nursing Home Industry

The Center for Medicare Advocacy   recently released a new report,  Nursing Home Industry is Heavily Taxpayer-Subsidized.

I offer you this opening paragraph as a teaser to the 6 page report:

It is well-known that Government health care programs, Medicare and Medicaid, are the primary payers for nursing home care. The two federal programs paid facilities tens of billions of dollars for providing care to residents and were the primary payer for nearly 80% of residents.  Far less known is that, in addition to receiving these direct payments, the nursing home industry also benefits from the extensive subsidies, through income-related public benefit programs – Medicaid, food assistance, housing assistance, heating assistance, cash payments, tax credits, and more – that help support its underpaid staff. The Government subsidizes the nursing home industry by billions of dollars each year by providing needs-based public benefits and earned income tax credits to its many low-wage nursing home workers. (citations omitted in this quote).

The article discusses the facilities, the employees, salaries and public benefit programs, and issues this call to action: "Change is beginning to happen in wages for low-wage workers, but until all nursing home workers’ wages are raised to (at least) living wages and until all workers receive health benefits and paid time off, the Government will continue to subsidize nursing homes by billions of dollars by providing needs-based public benefits and earned income tax credits to the nursing home industry’s low-paid workers. ..." (citations omitted in this quote).

In the interest of full disclosure, I am on the board for the Center for Medicare Advocacy.

Baby Boomer Home Ownership

To say the Florida real estate market is hot is a drastic understatement.  The prices of housing is shocking and folks are paying a lot more than asking price.  So I was interested in the article last week, the New York Times ran,  Baby Boomers: Rich With Real Estate and Not Letting Go.

The concept of aging in place, already growing in popularity before the pandemic, has found renewed interest among baby boomers, some of whom are now wary of nursing homes, where at least one third of U.S. Covid-19 deaths have occurred. The trend is intensifying pandemic home-inventory shortages and price increases, frustrating younger buyers who want to grab their share of real estate wealth.

The bulk of real estate wealth was long held by baby boomers’ predecessors, the Silent Generation (those born before 1946), but they generally followed the familiar pattern of selling later in life and moving in with extended family, to assisted-living facilities or nursing homes. Aging-in-place boomers are disrupting this trend. This week’s chart, using Federal Reserve data, shows that boomers surpassed the Silent Generation in real estate wealth in 2001, and have yet to yield that position.

Although the Gen-Xers are buying...and selling, it's not at the same rate as prior generations. Are you thinking "so what?" with a shoulder shrug. Consider this. "In 2029, the youngest baby boomers will have their 65th birthdays and the oldest their 83rd. As the tail end of this generation heads to retirement, some will sell their homes, and if they don’t, eventually their estates will. But unless a lot more homes are built, and fast, the younger generations will simply have to wait for their share of real estate riches."

Home Care Worker Shortage Means Long Waits for Help

Kaiser Health News ran this story last month, Desperate for Home Care, Seniors Often Wait Months With Workers in Short Supply.  Using Maine as an example, the article explains

The Maine home-based care program, which helps Shackett and more than 800 others in the state, has a waitlist 925 people long; those applicants sometimes lack help for months or years, according to officials in Maine, which has the country’s oldest population. This leaves many people at an increased risk of falls or not getting medical care and other dangers.

The problem is simple: Here and in much of the rest of the country there are too few workers. Yet, the solution is anything but easy.

The article reminds us that the President had included funding for home and community-based care in the infrastructure bill ("human infrastructure") and that this shortage was not unexpected. "For at least 20 years, national experts have warned about the dire consequences of a shortage of nursing assistants and home aides as tens of millions of baby boomers hit their senior years." 

And here we are.  The article emphasizes money--the lack of it, the low wages and more.

 

 

Deceptive Campaign Fundraising?

Last month the New York Times ran an article on How Deceptive Campaign Fund-Raising Ensnares Older People.

The dirty little secret of online political fund-raising is that the most aggressive and pernicious practices that campaigns use to raise money are especially likely to ensnare unsuspecting older people, according to interviews with digital strategists and an examination of federal donation and refund data.

Older Americans are critical campaign contributors, both online and offline. More than half of all the online contributions processed by [one company] in the last cycle, 56 percent, came from people who listed their occupation as “retired,” federal records show.

Digital operatives in both parties deploy an array of manipulative tactics that can deceive donors of all age groups: faux bill notices and official-looking correspondence; bogus offers to match donations and hidden links to unsubscribe; and prechecked boxes that automatically repeat donations, which are widely seen as the most egregious scheme.

But some groups appear to specifically target older internet users, blasting out messages with subject lines like “Social Security” that have particular resonance for older people, and spending disproportionately on ads for an older audience. In many cases, the most unscrupulous tactics of direct mail have simply been rebooted for the digital age — with ruthless new precision.

The article notes that age is not reported on federal filings, so the depth of this occurring is unclear. However, the NYT looked at refund data correlating with voter rolls for California and reports "that  the average age of donors who received refunds was almost 66 on [a republican company] and nearly 65 on ... the equivalent Democratic processing site... Even more revealing: More than four times as much money was refunded to donors who are 70 and older than to adults under the age of 50 — for both Republicans and Democrats."  The issue is not limited to political campaigns the article notes.  "There is an entire initiative at the Justice Department devoted to elder abuse, and the F.B.I.’s Internet Crime Complaint Center reported nearly $1 billion in losses for those 60 and older in 2020." One expert quoted in the article noted "older people face a double whammy online when combining their generational lack of familiarity with technology and age-related cognitive declines."

The article delves into some reasons for such an impact and examines some of the email messages. It's an interesting read.

California Bar Seeking Input on Proposed Formal Opinion on Clients with Diminished Capacity

The California Bar has asked for input on Proposed Formal Opinion Interim No. 13-0002 (Client with Diminished Capacity).  According to the announcement

Proposed Formal Opinion Interim No. 13‑0002 considers: What are the ethical obligations of a lawyer for a client with diminished capacity?

The opinion interprets rules 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code section 6068(e).

The opinion digest states: A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney client relationship with the client, that is, a relationship in which the client makes those decisions normally reserved to the client. The lawyer’s ethical obligations to such a client do not change, but the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected. In representing such a client, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline. In some situations, the client’s lack of capacity may require that the lawyer decline to effectuate the client’s expressed wishes. When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.

At its meeting on October 23, 2020, and in accordance with their procedures, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 13-0002 for a 90-day public comment distribution. Subsequently, at its meeting on June 11, 2021, COPRAC revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No. 13-0002 for an additional 60-day public comment distribution.

The text of the proposed  opinion is available here.

Republished July 19 to correct error in title.

Seems like a good time to remind everyone of the fabulous resource from the ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2nd Edition. It's a must have for every attorney's library.

Analyzing Britney Spears' Conservatorship: How Should Courts Respond to Allegations of a Toxic Guardianship?

This summer, J. Collin Fulton, a rising 2L student at Dickinson Law, with a prelaw background in journalism, has been doing a fantastic job while working on projects with me.  He put together this very thoughtful overview of how Britney Spears' concerns, arising in the context of the California-based proceeding, may be relevant to the larger analysis of guardianships and conservatorships across the nation.  

From J. Collin Fulton:

In the areas of guardianship and conservatorship law, perhaps no recent case has captured the attention of the American public as thoroughly as the conservatorship of Britney Spears. The Pop singer’s conservatorship was established in California in 2008 and has become one of the best-known examples of how, under U.S. law, a person can have the management of both their personal life and financial affairs placed under the control of a court-appointed guardian/conservator, typically as a result of mental or physical conditions or advanced age.

While a legion of Ms. Spears’ fans has routinely called into question both the necessity and nature of the singer’s conservatorship, it was the release of the New York Times' 2019 documentary “Framing Britney Spears” which brought the details of Ms. Spears conservatorship to the attention of the broader public. I personally became aware following the Times’ publication on June 22nd of an article detailing how Ms. Spears herself feels about the conservatorship. Based on court records acquired by the NYTimes, the article details both Ms. Spears opposition to the continuance of her conservatorship in its present form as well as Ms. Spears claims concerning some of the effects the conservatorship has had on her life. Based on court documents going back to 2014, the NYTimes article reports that:

• Spears “feels the conservatorship has become an oppressive and controlling tool against her.”
• Spears has informed the court that, as a result of the conservatorship, she felt compelled to perform against her will and compelled to stay at a mental health facility against her will.
• The conservatorship restricted a broad range of Ms. Spears decision making, ranging from who she was allowed to date to the manner in which she could decorate her home.

Ms. Spears’s June 23 public testimony further cast the conservatorship in a negative light. In the testimony, the singer claimed that, against her will, she was forced to take mood-altering drugs and forced onto contraception. Ms. Spears again called for her conservatorship to be ended and generally for the laws surrounding conservatorships to be changed. This call has been echoed by numerous other singers in support of Ms. Spears, including Justin Timberlake, Halsey, Brandy, and Mariah Carrey, as reported by the BBC.

Given what Ms. Spears claims has transpired as a result of her conservatorship and the public support she has received, I became deeply curious about how a conservatorship can actually be terminated. Given the complexity of guardianship/conservatorship laws, this is a question without a simple answer.

First, state laws vary significantly regarding who, how, and why a person can be placed under a guardianship/conservatorship. As Ms. Spears’s case takes place in California, I focus there.

There are two types of conservatorships under California law: Lanterman-Petris-Short (LPS) and Probate conservatorships, the latter of which is exemplified by Ms. Spears’s situation.

Such conservatorships are typically permanent affairs in California; however, they can be terminated in the following ways:

• The conservatorship ends due to the death of the conservatee.
• A judge may end the conservatorship upon petition to do so resulting from the conservatee regaining the ability to manage their own affairs (The argument Ms. Spears appears to be currently making).
• A conservatorship of the estate can be ended if the conservatee ceases to possess any assets to protect.

Learning this raised a new question for me: why would a court allow a conservatorship such as Ms. Spears’s to continue given her allegations? I believe the answer to this question lies in the purpose of guardianship/conservatorship laws.

This purpose is perhaps best exemplified in the California “Handbook for Conservators,” which the state mandates for conservator cases. The Handbook has a clear message for every new conservator: “You have been appointed conservator because someone – your parent, spouse, child, or other relative or friend – needs help, and you are willing to lend a hand.” This simple message, in my opinion, captures the thought behind guardianship and conservatorship laws. There are, sadly, situations in which a person is unable to manage their affairs. Guardianships and conservatorships allow for a legal redress to such situations, enabling courts to appoint a trusted individual to provide assistance in such circumstances.

The California Handbook also highlights another important fact central to the functionality of conservatorships: “The position of conservator is one of great trust and responsibility. The court and conservatee are trusting you to follow the law and to act in the conservatee’s best interests.” Given the incredible responsibilities assumed by a guardian/conservator, it is indeed imperative that guardians/conservators execute their duties with the utmost understanding and respect for the individual's own values and goals, while also complying with the legal obligation to make decisions in the best interest of the individual they have been appointed to protect.

With the purpose of guardianships/conservatorships now understood, I turn back to Ms. Spears and the question of why, given her allegations, her conservatorship still remains. The answer is, simply, that legal process such as this take time.

Just as a court needed to consider a multitude of factors in determining that Ms. Spears should become a conservatee, the court must now perform proper inquiries into the allegations that Ms. Spears has raised and then determine an appropriate response to take based on the validity of these allegations. This is true not only for Ms. Spears, but for any person in a guardianship/conservatorship situation. Guardianships/conservatorships are serious affairs, ones in which a person’s ability to control their own lives have been taken from them and handed to another individual, hopefully one who is trustworthy and will act in their best interest. Should doubts emerge about the actions of a guardian/conservator, or indeed the necessity of an established guardianship/conservatorship itself, investigating the situation thoroughly is paramount to the integrity of not only the guardianship/conservatorship in question but also the legal system of guardianships/conservatorships at large.

Mr. Fulton concludes:  I thus believe that while a quick response from the court may satiate the immediate public outcry for change, a proper inquiry which establishes the truth and, in turn, enables the court to act based on the facts will not only improve Ms. Spears' situation but enhance public knowledge on the current state of guardianship/conservatorship laws in the United States.

How Does Market Concentration Affect Long-Term Care in the US?

During the first part of my summer, I wrote a review on Senator Amy Klobuchar's April 2021 book, Antitrust: Taking On Monopoly Power From the Gilded Age to the Digital Age. That turned out to be a very enjoyable, stimulating task and my article will be published late summer or early fall.  This gave me the incentive to rethink how antitrust law, as a form of pro-consumer-protection "competition" rules might affect long-term care, including the concentration of ownership and operation of nursing homes and other types of "senior living." The  student editor for the Law Review,  Claudia Bernstein (Dickinson Law, Class of 2022), also has been captured by the topic, and she sent me an article today from the New York Times that furthered this inquiry.  A key passage:

[In the U.S.] Fewer new businesses are starting. Existing businesses have slowed the pace at which they hire new workers . . . . Workers are less likely to switch jobs or move to a new city. Companies are investing in new buildings and equipment at a lower rate. And small businesses make up a shrinking share of the economy.

 

Together, these trends suggest that the economy suffers from a lack of fair competition, many economists believe. Large corporations are often able to increase profits not by providing better products than their rivals but instead by being so big that they exercise power over workers and consumers. The government also plays a role, through policies that protect existing companies at the expense of start-ups and new entrants into an industry.

 

The technical term for excess profits from a lack of competition is “monopoly rents.” Just think about how frustrated you may have been by the customer service from an airline, cable-television provider or health insurer. And then imagine how frustrating it may be to work there. Despite the problems at these companies, consumers and workers don’t always have good alternatives.

In my local area, there is a variation on this problem.  As I have written about recently, county officials are proposing to close the county's "nursing home," which in my experience has been well run and  served as a viable alternative for necessary services, including memory care.  The likely purchaser will be a for-profit company (a modest-size, relatively new tri-state regional player).  The county hopes to cease "having to subside the facility with general tax money."  But, without those "subsidies," consumers' payment for care will have to increase, affecting residents unlikely to have the ability to pay more.  As one article on the history of Pennsylvania's county nursing home conversions concludes:

County-owned homes, once ubiquitous, are becoming less common in Pennsylvania. Facilities that have been privatized generally have lower ratings on common metrics; a York Dispatch study in 2018 found that 15 formerly county-owned facilities sold since 2005 had an average rating of 1.9 stars out of five on the common scale used by the Centers for Medicare and Medicaid Services, while the state’s 21 county-owned homes averaged 3.1 stars [out of a possible 5 stars].