Friday, November 16, 2018

Caregivers need to save for retirement

We all know that caregiving can be a 24/7/365 job.  And many caregivers are working full time and caregiving part-time, while others leave their jobs to caregive. In those situations, it is no less important for caregivers to save for their own retirement, no matter how hard that may seem to be.  US News ran a story, Caregivers Should Save for Retirement which focuses on caregiving for someone with special needs. The article highlights the issues

ADVANCES IN MEDICINE and technology are allowing Americans – including those with special needs and disabilities – to enjoy longer, fuller lives. Still, as a caregiver, the emotional, physical and financial toll can be draining and could potentially prevent you from being able to plan for your own future. Research shows 30 percent of caregivers are not saving and investing for their own retirement because of the time and cost required for caring for those with special needs.

The article suggests the following for the caregiver: check out the available programs and benefits, continue savings and don't forget to invest, consider the implications of your financial situation on the individual with special needs who is applying for means-tested assistance, be aware of the impact of well-meaning relatives making a testamentary gift for the individual, and housing options and their various levels of care to name a few. The article also discusses special needs trusts and ends with this:

The key takeaway is that planning for your financial future, while at the same time ensuring continuity of care for a loved one, can be extremely complex, but you don't have to do this alone. Leveraging professional resources and revisiting your plan periodically can help keep you on track as your needs, and the needs of your family, continue to evolve.

November 16, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Estates and Trusts, Health Care/Long Term Care, Medicaid, Social Security | Permalink

Wednesday, November 14, 2018

Stan Lee has died

Stan Lee has died at age 95.  Many will recognize him as the creator of many famous superheroes in the Marvel comic universe.  Movies based on his superheroes have been blockbusters and his cameos were one of the highlights of the films. More recently though, he has been in the news because of an issue familiar to elder law attorneys.  As the New York Times reported in his obituary, 

In Mr. Lee’s final years, after the death of his wife, the circumstances of his business affairs and contentious financial relationship with his surviving daughter attracted attention in the news media. In 2018, Mr. Lee was embroiled in disputes with POW!, and The Daily Beast and The Hollywood Reporter ran accounts of fierce infighting among Mr. Lee’s daughter, household staff and business advisers. The Hollywood Reporter claimed “elder abuse.”

In February 2018, Mr. Lee signed a notarized document declaring that three men — a lawyer, a caretaker of Mr. Lee’s and a dealer in memorabilia — had “insinuated themselves into relationships with J. C. for an ulterior motive and purpose,” to “gain control over my assets, property and money.” He later withdrew his claim, but longtime aides of his — an assistant, an accountant and a housekeeper — were either dismissed or greatly limited in their contact with him.

In a profile in The New York Times in April, a cheerful Mr. Lee said, “I’m the luckiest guy in the world,” adding that “my daughter has been a great help to me” and that “life is pretty good” — although he admitted in that same interview, “I’ve been very careless with money.”

November 14, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Tuesday, November 13, 2018

Famous Faces of Dementia

Soon after Justice O'Connor's announcement, the New York Times ran an article, Dementia Is Getting Some Very Public Faces.

Focusing on the issue of stigma that accompanies the disease, the article notes the impact of Justice O'Connor going public about her condition.  Dementia and specifically Alzheimer's can strike any one, regardless of fame or fortune. As the article notes

Justice O’Connor had joined a growing but still tiny group: public figures who choose to share a dementia diagnosis. ...  The breakthrough came in 1994, when Ronald and Nancy Reagan released a handwritten letter disclosing his Alzheimer’s disease.

“In opening our hearts, we hope this might promote greater awareness of this condition,” the former president wrote. “Perhaps it will encourage a clearer understanding of the individuals and families who are affected by it.”

Musician Glen Campbell and his family reached a similar decision in 2011, announcing his Alzheimer’s diagnosis, and several farewell concerts, in a magazine interview. The concerts became a 15-month tour and an intimate, unflinching documentary.

The famous folks also include Pat Summit and Gene Wilder.  So what is the value of famous folks going public with their diagnosis? We already know that a large number of folks are diagnosed with dementia and that Alzheimer's disease in particular is horrible disease in my opinion.

It’s hardly an obscure condition. About 5.7 million Americans have Alzheimer’s disease, the Alzheimer’s Association estimates. That represents just 60 to 80 percent of people with dementia, which takes multiple forms.

Though dementia rate seems to be declining, possibly because of rising education levels and better treatment for conditions like hypertension, both of which seem to help prevent dementia. But the number of Americans affected will continue to grow as the population grows and ages.

Already, Alzheimer’s has become the fifth leading cause of death for those aged 65 and older — and the only one for which medicine can’t yet offer prevention or treatment.

The article explains the value of famous folks going public with their diagnosis lessens the stigma others may feel from that diagnosis. Plus it may lead to earlier diagnosis for others and although there is no cure, it gives the patient and families more time to plan.

November 13, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, November 8, 2018

8 Briefs-Financial Exploitation by Conservators

The National Center for State Courts project on  Elders & Courts, with other organizations have published  a series of 8 research briefs on Financial Exploitation by Conservators.  The topics include

  • Examples of Conservator Exploitation: An Overview
  • Conservator Exploitation in Minnesota: An Analysis of Judicial Response
  • Detecting Exploitation by Conservators – Court Monitoring
  • Detecting Exploitation by Conservators – Systemic Approach
  • Court Actions Upon Detection of Exploitation
  • Innovative Programs that Address Financial Exploitation by Conservators
  • Data Quality Undermines Accountability in Conservatorship Cases
  • Supporting Victims of Conservator Exploitation

as well as key resources for these cases.

The introduction explains the impetus for the work, the 8 briefs, definitions of common terms and the reason for the project

NCSC in 2016 estimated, based on projections, that there are approximately 1.3 million active adult guardianship or conservatorship cases in the United States and at least $50 billion in assets under conservatorships (see Data Quality Brief). Also in 2016, the U.S. Government Accountability Office (GAO) found that “the extent of elder abuse by guardians nationally is unknown due to limited data . . .” While many conservators are trustworthy, dedicated, and provide critically needed services, multiple media accounts over many years profile instances in which conservators have breached their fiduciary duty – taking advantage of those they were charged with protecting. (citations omitted)

 

November 8, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, November 4, 2018

10 Commandments of Capacity

The ABA Commission on Law & Aging published its September-October newsletter, BIOFOCAL. The lead article is on  The Ten Commandments of Mental "Capacity" and the Law.

Recognizing the evolving state on the issue of capacity, the article explains 

[R]ecent changes have called the legal term “capacity” into question. The U.N. Convention on the Rights of Persons with Disabilities in Article 12 recognizes that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that governments must take measures to assist individuals in exercising their capacity. The emerging principle of supported decision-making focuses on providing the needed support to help people make decisions. Finally, the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA), approved by the Uniform Law Commission for adoption by state legislatures, does not use the term “capacity” – rather, it guides courts in determining whether there is a “basis” for the appointment of a guardian, taking into account needed supports and supported decision-making.

The article goes on to offer Ten Commandments:

1. presume capacity, 2. talk alone to the client, 3. make efforts to increase the client's abilities, 4. recognize there is no one "universal standard for assessing capacity", 5. lawyers shouldn't administer the mini-mental status exam, 6. remember it's capacity to do a specific task, 7. remember to examine the big picture, 8. keep the client's wishes, goals, etc. in the forefront, 9. remember client confidentiality and autonomy, and 10. remember the importance of advance planning.

 

 

 

 

November 4, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (1)

Wednesday, October 31, 2018

Dementia and Firearms

Kaiser Health News wrote about when a doctor should have a conversation with a patient with dementia about gun ownership.  Dementia And Guns: When Should Doctors Broach The Topic? explains the lack of guidance for health care professionals on whether and how to address the topic with patients.

Some patients refuse to answer. Many doctors don’t ask. As the number of Americans with dementia rises, health professionals are grappling with when and how to pose the question: “Do you have guns at home?”

While gun violence data is scarce, a Kaiser Health News investigation with PBS NewsHour published in June uncovered over 100 cases across the U.S. since 2012  in which people with dementia used guns to kill themselves or others.  

As well, a diagnosis of dementia doesn't automatically mean a person is unable to handle a firearm.  One program, according to the article, has developed guidance for health care professionals regarding gun violence.  There are others who take the opposite view and one expert interviewed for the article reports that some patients are seeking out physicians who are "gun-friendly," resulting in the creation of a referral service.

The article defines the issues as (1) the legality of health care providers asking patients about gun ownership, (2) the reasons health care providers may not ask, (3) the timing of any such conversation, (4) recommendations regarding firearm ownership by those with dementia, and (5) what happens when the health care provider asks,  The article discusses each of these issues from both perspectives. 

I was aware that some professional guardians have dealt with the question of gun ownership when appointed to a case. This article offers a glimpse into the topic from the perspective of health care providers.  The Hook Law Center also published a piece about guns and dementia based on a recent article in the New York Times. One of the points made in that article

The conversation about gun ownership and dementia may arise in any setting and can be initiated by a professional such as an elder law attorney or financial advisor.  Many are hesitant to reveal gun ownership but, for those who do, they often don’t want to reveal locations, nor do they want to voluntarily give up possession of their firearms.  When the discussion focuses on “taking things away” for a person with a diagnosis of dementia, this may feel like additional loss of control and can be extremely unpleasant.  Instead, the conversation should be approached as one of safety.  Unfortunately, dementia can often interfere with a person’s reasoning and decision-making skills, and the person may lack insight into the potential problem.  However, when the discussion is presented as one of safety for themselves and loved ones, the conversation feels like less of an intrusion.

The article on the Hook Law website also addresses what to do with any firearms removed from someone with dementia, recommending "caution when removing firearms from a home and when advising individuals." Even though most states allow the temporary transfer of a firearm to a family member without a background check" not all do so, according to the article. The article also notes the prohibition on convicted felons possessing a fire arm "and states have strict laws about allowing the private sale of guns.  Some gun stores and ranges offer storage and transportation options." The article recommends consulting with an attorney before acting. 

PS-this is not intended to be a political post. I am just intending to keep readers up to date on topics relating to elder law.

 

October 31, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink

Sunday, October 28, 2018

Good Life in Later Years

The latest issue of the  Hastings Center Report is devoted to examining what gives a good life to someone in later life.  Volume 48, Issue S3 is titled What Makes a Good Life in Late Life? Citizenship and Justice in Aging Societies. All 15 of the articles are available for free. The topics run the gamut from social policies to age-friendly initiatives to housing to communities to advance directives for people with dementia, to name a few. Be sure to read the introduction before reading any of the individual articles, so you have the context of the volume. Here's the abstract for the introduction

The ethical dimensions of an aging society are larger than the experience of chronic illness, the moral concerns of health care professionals, or the allocation of health care resources. What, then, is the role of bioethics in an aging society, beyond calling attention to these problems? Once we’ve agreed that aging is morally important and that population‐level aging across wealthy nations raises ethical concerns that cannot be fixed through transhumanism or other appeals to transcend aging and mortality through technology, what is our field’s contribution? We argue that it is time for bioethics to turn toward social justice and problems of injustice and that part of doing so is articulating a concept of good citizenship in an aging society that goes beyond health care relationships.

Good stuff!

October 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Science | Permalink | Comments (0)

Tuesday, October 23, 2018

Justice Sandra Day O'Connor's Courage

My father and Sandra Day O'Connor happen to have many moments in common.  My father and Sandra both grew up in the deserts of Arizona.  They both practiced law in Phoenix.  Indeed, they even shared the same birthday, although my father was a few years older and passed away in 2017.  They socialized in the same circles and their spouses were friends with each other as well.  

Now they share one more event, and that is the personal experience of dementia.  My father, who had already stepped down as a federal judge at the district court level before he was diagnosed, never really accepted the diagnosis.  I think the disease sometimes robs the individual of understanding.  I admire Justice O'Connor and her family for the public announcement they made this week, disclosing her diagnosis of dementia, most likely of an Alzheimer's type.  

All best wishes, to the whole O'Connor family.   As one news story reminds us, there are an estimated 5.7 million Americans with Alzheimer's Disease and almost two-thirds of them are women.  

October 23, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Sunday, October 14, 2018

Fictional Times in Dementia Care

A couple of weeks ago I blogged about "reminiscence therapy" used for people with dementia. The New Yorker has added to the literature on this topic with the recent article, The Comforting Fictions of Dementia Care.

The article describes different efforts by facilities, from common rooms designed to resemble eras gone by giving residents baby dolls that simulate real babies. For those who ask routinely to go home, "many nursing homes and hospitals have installed fake bus stops. When a person asks to go home, an aide takes them to the bus stop, where they sit and wait for a bus that never comes. At some point, when they are tired, and have forgotten what they are doing there, they are persuaded to go back." One company based in Boston used technology to simulate conversations. Known as "Simulated Presence Therapy"  this system "mak[es] a prerecorded audiotape to simulate one side of a phone conversation. A relative or someone close to the patient would put together an “asset inventory” of the patient’s cherished memories, anecdotes, and subjects of special interest; a chatty script was developed from the inventory, and a tape was recorded according to the script, with pauses every now and then to allow time for replies. When the tape was ready, the patient was given headphones to listen to it and told that they were talking to the person over the phone."  The article notes that those with short term memory loss can listen to the tape routinely. Technology has made simulations even more realistic and interactive, down to "footage of a passing scene [giving] the impression of movements."

The article features details of various enterprises and highlights at least one facility's efforts. It's definitely worth reading.

Thanks to my colleague, Professor Bauer, for sending me the link.

October 14, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing | Permalink

Thursday, October 11, 2018

"Solo Agers" and a Fall Back Plan

Previously we have blogged about the need for caregivers and how that role typically falls to family members.  What about those "elder orphans" or "solo agers"  who don't have kids or family to fill that role? Kaiser Health News addressed that issue in the article, Without Safety Net Of Kids Or Spouse, ‘Elder Orphans’ Need Fearless Fallback Plan. “[E]lder orphans” (older people without a spouse or children on whom they can depend) and “solo agers” (older adults without children, living alone), [are expected] to move through later life without the safety net of a spouse, a son or a daughter who will step up to provide practical, physical and emotional support over time [and almost]22 percent of older adults in the U.S. fall into this category or are at risk of doing so in the future, according to a 2016 study." Not only are there a fair amount of folks in this category according to the survey, "70 percent of survey respondents said they hadn’t identified a caregiver who would help if they became ill or disabled, while 35 percent said they didn’t have “friends or family to help them cope with life’s challenges.”  This means these folks are not prepared for aging, according to one expert quoted in the article. The article discusses the survey results and provides so suggestions for experts on how these elder orphans or solo agers can prepare. 

But the key here is to be proactive-there is no magic wand here folks.

 

October 11, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, Other | Permalink | Comments (0)

Wednesday, October 10, 2018

Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill

As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year.  Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.   

Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians.  But this one senator's late-breaking concerns triggered another delay.  Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.  

Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic.  House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.  

The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators.  Sounds like a commendable purpose.  But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia.  One member of the  House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future. 

Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time. 

Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families?   It may not matter when the train is running at full steam.

 

October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, October 1, 2018

In Supreme Court Tomorrow, Oct 2, Oral Argument on Whether 8th Amendment Bars Execution of Individual With Advanced Dementia & No Memory of Crime

As type this post, in the background I can hear the televised voices of legislators on Capitol Hill arguing over the significance of loss of memory and the passage of time.  

This post is also about loss of memory.  On Tuesday, October 2, 2018, during the Supreme  Court's first day of oral arguments in the new term, the justices will hear the case of Madison v. Alabama.  The capitol crime in question occurred in 1985, and the proceedings following imposition of the death penalty have been technical  and portracted, involving detailed forensic evaluations.  Here is a summary from the ABA Journal:

“It is undisputed that Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years and no longer has a memory of the commission of the crime for which he is to be executed,” said the stay application filed by his lawyers with the Equal Justice Initiative in Montgomery, Alabama.

 

“His mind and body are failing,” the filing continued. “He suffers from encephalomalacia [dead brain tissue], small vessel ischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.”

 

On Feb. 26, over the objections of Alabama state officials, the high court granted full review of Madison’s case, based on the questions of whether the Eighth Amendment and relevant court precedents permit a state to execute someone who whose mental disability leaves him without memory of his commission of the capital offense, and whether evolving standards of decency bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes.

The American Psychological Association and the American Psychiatric Association have jointly filed an amicus brief addressing the use of brain imaging to diagnose severe vascular injuries and describing reliable methods used to detect any potential for a feigned impairment in this case. They contend the assessment methods used in this instance leave "no doubt that Mr. Madison lacks a rational understanding," such that his execution would violate the Eighth Amendment.

For purposes of the legal issues identified by the Court, the State of Alabama largely concedes the mental disability and the absence of memory of the commision of the capital offense, but contends that valid "penological interests in punishing a murder exist." 

October 1, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Science | Permalink | Comments (0)

Sunday, September 30, 2018

Reminiscence Therapy and Adult Day Care

Some time ago we wrote about a new " town square" opening in San Diego  that would allow visitors with dementia to experience the 1950s again.  The idea is now spreading,  City Lab published a story a few weeks ago about this trend.  Why a ‘Memory Town’ Is Coming to Your Local Strip Mallexplains:

[The builder]  has partnered with the home health-care giant Senior Helpers, which employs some 25,000 caregivers around the U.S., to build Town Squares around the country. Version 2.0 is under construction near Baltimore, in a former Rite Aid in White Marsh, Maryland. Seniors Helpers will own and run that facility, expected to open in early 2019. But franchise sales are under way, and Peter Ross, the company’s CEO, is bullish.

We know the number of elders in the U.S. is continuing to increase and with the decliner in mall space, the article notes, can become perfect locations for these expanded types of adult day care facilities.  I was intrigued by the information in the article about our memories. 

Our strongest, most enduring memories tend to be the those formed in adolescence and early adulthood, from roughly the ages of 10 to 30. Reminiscence therapy targets this age range, and for those Silent Generation members now in their 70s and 80s, that means the 1950s. (A person who is 80 in 2018 would have been 12 in 1950.) So the design of Town Square is intended to evoke the years between 1953 and 1961. It’s decked out with touches like a rotary phones, a 1959 Ford Thunderbird, a classic jukebox, portraits of period Hollywood stars, and vintage books and magazines. As the years go by, these will be replaced by more recent, period-appropriate prompts.

Those visiting the San Diego "town hall"  for the most part "have early-to-moderate-stage Alzheimer’s disease, and they’re assessed in advance to determine whether they’re likely to benefit from the experience."  As I mentioned earlier, this project is a type of adult day care, but it's more like an adult day care +. "The service that Glenner provides at Town Square—and that its franchisees will offer—is a form of adult day care, but in an unusually elaborate, cheerful, and spacious setting. Part of the sales pitch is that family members of people with dementia can feel good about leaving their loved ones for the day to give themselves a needed respite. (Not surprisingly, the extra reassurance comes at a premium; Town Square costs $95 a day, while the average rate for adult day-care centers is $61.)"

The article discusses another trend, that of the lure of nostalgia, even describing "nostalgiaville" as "places ....[that] remind [folks] of their youth."  "The onward march of private or semi-public “nostalgiavilles” (retiree-only communities such as the Villages, Florida, are similarly engineered to evoke vanished small-town life) raises the question: Do people respond to these places ... because [of that reminder], or does their form matter, too? After all, millions of Boomers grew up in postwar sprawl, but Town Square isn’t designed to mimic that."

When you can, spend some time reflecting on the author's closing thoughts:

It’s a sad commentary on our real, full-scale communities that they are so anti-urban by comparison, and so unsafe for the old and frail. Most of the elderly participants strolling these franchised memory lanes will have to be driven to the suburban shopping centers that host them. The recipe for age-friendly cities is not that difficult: walkability, accessibility, plenty of outdoor space, good transit, opportunities for social connection. We shouldn’t have to dodge traffic on an eight-lane road just to get to a simulacrum of an inclusive urban place. The problem is not too much Disneyland thinking—it’s not enough.  

My thanks to my colleague Mark Bauer for sending me the link to this article.

September 30, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink

Thursday, September 27, 2018

Financial Caregivers Now Can Request Security Freezes

The FTC has announced that effective September 21, 2018, financial caregivers can now request security freezes for those for whom they manage money.  Managing someone else’s money: New protection from ID theft and fraud explains that "[a] security freeze restricts access to your credit reports and makes it hard for identity thieves to open new accounts in your name. Under the new law, it’s free to freeze and unfreeze your credit file at all three of the nationwide consumer reporting agencies – Equifax, Experian, and TransUnion." The law extends the ability to those who have "certain legal authority [to] act on someone else’s behalf to freeze and unfreeze their credit file. The new law defines a “protected consumer” as an incapacitated person, someone with an appointed guardian or conservator, or a child under the age of 16." The article explains that the law does require proof of legal authority, which the article notes includes a DPOA or guardianship order. This is a great idea! Make sure you tell your clients about this.

September 27, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Property Management | Permalink

Tuesday, September 25, 2018

Thinking about Capacity

Last weekend, Penn State's Dickinson Law held our annual alumni weekend, combined with a convocation ceremony for first year law students. I also happened to attend a non-law school function.   In breaks during scheduled events, I had time to chat with alums and friends and by the end of the weekend, I realized there was a bit of theme to my conversations the last few days.  In several of the conversations, someone described to me scenarios where an older individual had become involved with a new friend or a new caregiver, or a long-lost family member and was "allowing" that third person to take advantage of them, usually in the form of monetary gifts or "loans," that would never be repaid.  

As we talked, I think we mostly agreed that one possible motivating factor for the older person was some level of fear, and not fear of the third person, but fear of being alone.  The exploitive behavior was tolerated because it was apparently preferable to being alone, or worse, being compelled to living in the dreaded nursing home.  

Another analysis I heard, but was less willing to agree with, was the lament, "what can you do, because X is competent and he has a right to give away his money if he wants to do so?"

In one example, the elderly person removed all of his life savings from a long-time professional money manager and placed the assets with a "new" manager, all because the new manager promised to charge "no" management fees.  The new manager held no licenses or professional qualifications.  A few months later, the client passed away -- and the new manager turned out to be the sole beneficiary of the estate.  

In another instance, the observation about competency or capacity was made about an older person over the course of several months, even as that person became more and more entangled with seemingly opportunistic "befrienders" who were viewed as untrustworthy by others.  Several weeks after the man seemed to disappear, his body was found in a shallow grave, while someone was still accessing his Social Security income.  A pretty dramatic end to that story of misplaced trust.  

My question:  How is it that we all tend to emphasize that the older person was competent -- or appeared to have capacity -- even as there is also evidence he or she is trusting the wrong persons?  

What I have learned from working with neuropsychologists is that so-called mini-mental exams used by primary care physicians do not necessarily evaluate an important, core component of capacity, a person's ability to exercise judgment in a sound way. Some screening tools tend to focus on cognitive  components that are more easily evaluated through a brief exercise, such as asking the individual to perform exercises that tend to focus on short-term memory or even delayed-recall abilities.  This is important because one aspect of judgment is the ability or inability to evaluate risk. Impaired judgment is viewed as an executive dysfunction or impairment, but it can exist without (or with only modest) memory impairment. Plus, impaired executive function can also be associated with lack of awareness or denial that there is a problem. 

The significance of loss of executive function has been tracked by legal practitioners, such as Patterns in Cases Involving Financial Exploitation of Vulnerable Adults (2014 Michigan Bar Journal).  On the important differences in screening tests used, see also Assessing Executive Dysfunction in Neurodegenerative Disorders: A Critical Review of Brief Neuropsychological Tools, published November 2017 in Frontiers in Aging: Neuroscience.  

 

  

September 25, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0)

Friday, September 21, 2018

The Nitty Gritty Details of Adult Guardianship Reform (Part 3)

This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.  

Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here.  A key amendment is now under consideration, in the form of AO9253.  These amendments:  

  • Require counsel to be appointed for all allegedly incapacitated persons;
  • Require all guardians to undergo a criminal background check;
  • Require professional guardians to be certified;
  • Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).

Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates. 

A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf.  His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:  

The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.

 

As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).

The devil is in the details for any legislative reforms.  It is often an "all hands on deck" effort to secure passage, especially in an election year.  

Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?   

September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, September 20, 2018

Focusing on the Bigger Picture in Adult Guardianship Reform (Part 2)

Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws,  here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?

Troubled histories have emerged across the nation.  Public concern has grown around the need for more careful consideration of the roles played by guardians.  For example, events in recent years have highlighted the following problems:

 

  • In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018. 
  • In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals.  This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
  • In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.   

 

The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians.  The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.

 

While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards.  Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System.  The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries. 

Continue reading

September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 11, 2018

Stetson's 20th Annual SNT Planning Conference

Registration is open for Stetson Law's 20th annual Special Needs Planning Conference.  The agenda is here . There are three pre-conferences on October 17: a full day program on Tax, a full day program on Pooled SNTs, and a half-day program on Veterans benefits. The National Conference is two days long and runs October 18-19, 2018.  Registration info is available here. Can't attend in person? The National Conference is being webcast. Early bird registration ends September 21, 2018 so don't delay!

Disclaimer: I'm the conference chair. Hope to see you there!

September 11, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Programs/CLEs | Permalink

Monday, September 10, 2018

Even in Paradise: An Accusation of Elder Exploitation

Abigail Kawananakoa, age 92 and the heiress of a legendary Hawaiian estate as the descendant of a family who once ruled the islands, is at the center of a court dispute about whether she is able to manage her own affairs -- and a $215 million trust.   

The money should go toward helping Native Hawaiians, they [Foundation Board Members] said at a news conference Thursday in front of Honolulu’s Iolani Palace. They are asking a judge to appoint a guardian for the elderly heiress, whose riches come from being the great-granddaughter of James Campbell, an Irish businessman who made his fortune as a sugar plantation owner and one of Hawaii’s largest landowners.

 

 Many Native Hawaiians consider Abigail Kawananakoa to be the last Hawaiian princess because she’s a descendent of the family that ruled the islands before the overthrow of the Hawaiian kingdom.

 

A key court hearing in a legal fight over the trust is scheduled for Monday.

 

Her longtime lawyer, Jim Wright, persuaded a judge to appoint him as trustee, arguing a stroke last year left her impaired. Kawananakoa says she’s fine.

 

As trustee, Wright appointed three prominent Native Hawaiian leaders to serve as board members for the $100 million foundation Kawananakoa created in 2001. The foundation has a right to participate in the court battle because it is a beneficiary of her trust.

 

Kawananakoa “has reached a point in her life where she needs us to stand up and fight for her and her legacy,” said foundation board member Jan Dill. Kawananakoa intended that the foundation serve the Hawaiian community in arts, language, culture and education, he said.

For more, read Foundation Board: Protect Hawaiian Heiress' Millions. 

While the above article does not fully explain the family dynamics, a photo accompanying the article depicts Ms. Kawananakoa and her wife, Veronica Gail Worth, who appears to be younger.  Another article describes Ms. Worth as a "longtime caregiver."  See A Cautionary Story of Elder Financial Abuse.  Still other new reports describe Ms. Worth as Kawananakoa's "partner of 21 years," prior to their October 2017 marriage ceremony, conducted before a retired Hawaii Supreme Court Justice.  See Hawaiian Heiress, 91, Marries Longtime Partner Amid Court Battle.

September 10, 2018 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 4, 2018

Podcast about Brooke Astor Case

Thanks to Julie Kitzmiller for sending me the link to a podcast at AARP on the Brooke Astor case.   Brooke Astor: Famous Socialite Robbed is one in a series (this one is #18) of podcasts on "the Perfect Scam".   The podcast runs about 25 minutes. Here's a description:

A prominent philanthropist and the epicenter of the New York society scene, Brooke Astor lived a tumultuous but glamourous life. Left a fortune by her third husband, Vincent Astor, Brooke planned to live out her later years at her country estate. But when Brooke’s son refuses to let her do so, then sells his mother’s favorite painting (worth over $30 million), grandson Philip decides to step in. Philip’s efforts to return his grandmother to the country home she loved would uncover one of the most prominent cases of financial elder abuse in U.S. history, with millions lost and a family torn apart.

A time-coded transcript accompanies the podcast and is available here.

 

September 4, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink