Elder Law Prof Blog

Breakthrough in Alzheimer's Research?

My dear friend and colleague, Professor Feeley, sent me a link to this recent article, Likely cause of Alzheimer’s identified in new study.

Here's a brief bit of info about the study

[S]cientists in Australia have recently discovered an additional factor that may be responsible for the development of this neurodegenerative condition.

Lead study author Dr. John Mamo, Ph.D. — distinguished professor and director of the Curtin Health Innovation Research Institute at Curtin University in Perth, Australia — explained to Medical News Today the conclusion from the new research...

“This study,” he added, “shows that exaggerated abundance in blood of potentially toxic fat-protein complexes can damage microscopic brain blood vessels called capillaries and, thereafter, leak into the brain, causing inflammation and brain cell death.”

The findings were published here. This is the abstract from the article

Several lines of study suggest that peripheral metabolism of amyloid beta (Aß) is associated with risk for Alzheimer disease (AD). In blood, greater than 90% of Aß is complexed as an apolipoprotein, raising the possibility of a lipoprotein-mediated axis for AD risk. In this study, we report that genetic modification of C57BL/6J mice engineered to synthesise human Aß only in liver (hepatocyte-specific human amyloid (HSHA) strain) has marked neurodegeneration concomitant with capillary dysfunction, parenchymal extravasation of lipoprotein-Aß, and neurovascular inflammation. Moreover, the HSHA mice showed impaired performance in the passive avoidance test, suggesting impairment in hippocampal-dependent learning. Transmission electron microscopy shows marked neurovascular disruption in HSHA mice. This study provides causal evidence of a lipoprotein-Aß /capillary axis for onset and progression of a neurodegenerative process.

An Expanding Role for State and Federal Courts in Assessing "Dementia"

In any given week, I often have someone reach out to me, a mere lawyer, asking me for suggestions about how to access assistance for a family member, a friend, or a colleague who is experiencing "mild to moderate dementia."  Of course, part of those requests arise because of my identity as an elder law attorney.  But, still, I think that such requests are a sign of the public's difficulty in identifying trustworthy alternatives.  This week, for example, a call came from a commercial attorney who was startled to realize he might be the closest to a family friend who is struggling with her doctor's strongly-worded recommendation that she should no longer live alone, because of serious difficulties with her memory and balance.  The family was unable or unwilling to help her.   Thus, the commercial attorney was learning about how/whether he could become her surrogate, if needed, for accessing better care and more suitable living arrangements.  Without such a friend, the decision-maker would likely end up being a complete stranger. 

Also this week, however, I was researching a question that led me to put "dementia" into a search box on the Westlaw search engine for recent court decisions.  I expected to see guardianship and conservatorship cases, as that is probably the most obvious reason why lawyers and courts would be involved with dementia.

Instead,  3 of the first 5 case decisions (reported during September 15-September 24) reported on Westlaw involved requests by convicted criminal defendants for relief or modification of sentences due to consequences of dementia.  This means judges are being asked to evaluate the severity of progressive conditions and the impact of the diagnosis on the likelihood the defendant will reoffend if released.  See e.g., Sentencing Guidelines Manual's application notes listing "advanced dementia" as a possible factor in considering whether there are "extraordinary and compelling reasons" for a reduced or modified sentence.  

Two cases decided by federal courts on the same day stood out: 

In U.S. v. Shabazz (USDC for District of Columbia, 9/22/21), compassionate release was denied for a 55 year old man, who had served 46 of his 67 month sentence for heroin and cocaine sales.  The defendant was seeking early release to help provide live-in care for his 80 year old mother who was suffering from worsening dementia, requiring constant care.  The court observed:  

The Court finds that Mr. Shabazz does not meet this high bar [of proof to support compassionate release]. To be clear, the Court fully credits the assertions of Mr. Shabazz, his sister, and [his mother's] doctor with regard to [his mother's] condition. But Mr. Shabazz has not shown that he is the “only available caregiver” for his mother, nor is his situation so rare as to qualify as “extraordinary.” While the Court is deeply sympathetic with the plight of Mr. Shabazz, his mother, and his sister, this case simply does not present the kind of “extraordinary and compelling” circumstances required to reduce a defendant's sentence under [18 U.S.C. ] § 3582(c).

In U.S. v. Wiman (USDC Indiana, 9/22/21), granted release for a man who had served more than 6 years of a 110 month sentence for armed bank robbery, based on evidence of the defendant's diagnosis of Parkinson's related dementia.  The court observed:   

Mr. Wiman is 73 years old.  He has been diagnosed with Parkinson's disease and Parkinson's dementia. Those conditions are progressing, and he has recently been transferred to a federal medical center so that he can reside in a memory disorder unit. Over the past several months, his medical records show that he has ongoing gait problems and has fallen multiple times despite using a walker. BOP medical staff also report that Mr. Wiman requires assistance with activities of daily living. Finally, BOP medical staff report that Mr. Wiman is occasionally confused.  

 

Importantly, Parkinson's disease is a progressive disorder that cannot be cured [citing Mayo Clinic website]. While medications can improve symptoms, those symptoms worsen as the condition progresses over time. That is, there is no reason to believe that Mr. Wiman's condition will improve. To the contrary, it will likely continue to deteriorate. . . . 

 

In the Wiman case, despite the government's argument that the federal prison system can provide a safe place to care for him and that his release "is not viable because he requires specialized care," the Federal District Judge granted the requested relief but stayed the date of release to permit establishment of a safe release plan including supervision, noting that if federal authorities are "unable to develop a viable release plan for Mr. Wiman despite making good-faith efforts to do so, the United State shall immediately notify the Court and explain why a viable release plan cannot be developed."  

The Challenges of Federal Oversight for Medications or Food Supplements Targeting an Aging Public

I'm finding myself spending a lot of time reading and thinking about the Food and Drug Administration (FDA) and Federal Trade Commission (FTC).  Of course, public concerns about the efficacy of Covid-10 vaccines dominate the attention of many of us working on health-related legal concerns that affect older adults.  For example, I've been researching questions about the potential for FDA approved antibody tests for Covid-19 vaccines.  

But also intriguing is a report that a slow-moving FTC suit against developers and marketers of the dietary supplement known as Prevagen may be getting closer to a possible trial date in the Southern District of New York.  A dismissal of the 2017 law suit filed jointly by the FTC and the New York Attorney General was overturned in 2019 by the Second Circuit in a summary order, concluding that the "FTC and New York have made plausible allegations that Defendants] marketing campaign for Prevagen contained deceptive representations."  For more on this and other Prevagen-related suits, see the Washington Post's recent article Does the Supplement Prevagen Improve Memory? A Court Case is Asking that Question.

Plus, there are significant questions arising in the wake of the FDA's June 7, 2021  announcement of its "accelerated" approval of aducanumab for treatment of Alzheimer's Disease.  See e.g., Recently Approved Alzheimer Drug Raises Questions that May Never Be Answered (JAMA Network, July 21, 2021).

As noted in Dr. Jason Karlawish's important new book, The Problem of Alzheimer's: How Science, Culture, and Politics Turned a Rare Disease into a Crisis and What We Can Do About It, the number of Alzheimer's patients in the U.S. will rise to an estimated 13.8 million by 2025.  The caregiver market alone is searching desperately for answers, and it can be very hard to make individual decisions about risks and benefits without trustworthy information.  This is a tough time for what we might call a pandemic crisis about "trust."   

Highlights from Touro Conference on Aging, Health, Equity, and the Law (9.13.21)

Touro College's Jacob Fuschberg Law Center hosted a fabulous half-day, interdisciplinary program on Aging, Health, Equity and the Law.  Among the highlights:

• A perfect kickoff with opening remarks on the theme of the conference from Syracuse Law Professor Nina Kohn, who outlined the civil rights of older persons, reminding us of existing laws and the potential for legal reforms;
•  A unique "property law" perspective on the importance of careful planning about ownership or rights of use, in order to maximize the safety and goals of the older person, provided by Professor Lior Strahilevitz from University of Chicago Law School;  
• Several sessions formed the heart of the conference by taking on enormously difficult topics arising in the context of Covid-19 about access to health care, including what I found to be a fascinating perspective from Professor Barbara Pfeffer Billauer  from her recent work in Israel. She started with an interesting introduction of three specific pandemic responses she's identified in her research. She then focused on how "Policy Pariah-itizing" has had a negative effect on health care for older adults, with examples from Israel, Italy, and China.  I was also deeply impressed by the candid presentations of several direct care providers, including nursing care professionals Esperanza Sanchez and Nelda Godfrey, about the ethical issues and practical pressures they are experiencing; 
• Illinois Law Professor Dick Kaplan offered  timely perspectives on incorporating cultural sensitivity in Elder Law Courses.  His slides had great context, drawing in part from an article he published about ten years ago at 40 Stetson Law Review 15;
• Real world examples about tough end-of-life decisions involving family members and/or formally appointed surrogates, with Deirdre Lock and Tristan Sullivan-Wilson from the Weinberg Center for Elder Justice leading breakout groups for discussions.

I know I'm failing to mention other great sessions (there were simultaneous tracks and I was playing a bit of leap-frog).  But the good news is we can keep our eyes out for the Touro Law Review compilation of the articles from this conference, scheduled for Spring 2022 publication.  I know it was a big lift to pull off the conference in the middle of the fall semester.  Thank you!

Webinar on Guardianship Accountability and Autonomy

The Elder Justice Initiative has announced an upcoming webinar, Innovations in Guardianship: Maximizing Autonomy and Ensuring Accountability, scheduled for September 30, 2021 at 2 eastern. Here's a description of the webinar:

Guardianship is one approach to providing support and assistance to adults who need help with decision-making about finances and personal issues. However, as recent high-profile and less visible cases illustrate, guardianship can also infringe on personal rights and can lead to mistreatment of older adults and adults with disabilities. Join us for a webinar to discuss current trends and challenges in state guardianship systems, policies and practice. Using real-life guardianship scenarios, the webinar will explore ways to maximize autonomy and ensure accountability throughout the guardianship process. Presenters will discuss less restrictive alternatives to guardianship as well as ways to improve adjudication and post-appointment oversight of guardians.

The link to register for the free webinar is here.

Front Page on the Sunday NY Times: "Phony Diagnoses" Used in Drugging at Nursing Homes

In a front-page Sunday article, Phony Diagnoses Hide High Rates of Drugging at Nursing Homes, The New York Times adds a subtle but important focus in providing its latest reports of a well known issue, the use of chemical restraints, including antipsychotic medications, to control behavior for people in long-term care settings.  The patients have been getting "new" diagnoses of schizophrenia, thus attempting to justify the sedation associated with major antipsychotic medications, such as Haldol, despite the fact that such medications are contraindicated for dementia patients. From the article:

In 2005, the Food and Drug Administration required manufacturers to put a label on the drugs warning that they increased the risk of death for patients with dementia.

 

Seven years later, with antipsychotics still widely used, nursing homes were required to report to Medicare how many residents were getting the drugs. That data is posted online and becomes part of a facility’s “quality of resident care” score, one of three major categories that contribute to a home’s star rating.

 

The only catch: Antipsychotic prescriptions for residents with any of three uncommon conditions — schizophrenia, Tourette’s syndrome and Huntington’s disease — would not be included in a facility’s public tally. The theory was that since the drugs were approved to treat patients with those conditions, nursing homes shouldn’t be penalized.

 

The loophole was opened. Since 2012, the share of residents classified as having schizophrenia has gone up to 11 percent from less than 7 percent, records show.

 

The diagnoses rose even as nursing homes reported a decline in behaviors associated with the disorder. The number of residents experiencing delusions, for example, fell to 4 percent from 6 percent.

As the news article reports, the challenges of caring for individuals with dementia are enormous, and lack of adequate staffing is certainly a reason why families and facilities use and misuse drugs to control -- restrain -- them.  But, at the same time, as I have written about on this Blog several times (see here, for example), the problem is not "just" about staffing ratios.    

Special thanks to Laurel Terry, Dickinson Law Professor Emerita, for ensuring I saw this latest article.  

Colorado City Makes Public Apology & Pays $3 Million to Settle Lawsuit Over Violent Takedown and Arrest of Older Woman

In May of 2021, we linked to emerging information about a June 2020 arrest of a 73 year-old woman with dementia in Loveland Colorado.  

The family of the older woman, Karen Garner, filed a civil suit.  On September 8, 2021, the City of Loveland issued a press release announcing a $3 million dollar settlement and expressing an apology to the family:  

“The settlement with Karen Garner will help bring some closure to an unfortunate event in our community but does not upend the work we have left to do. We extend a deep and heartfelt apology to Karen Garner and her family for what they have endured as a result of this arrest,” said Loveland City Manager Steve Adams. “We know we did not act in a manner that upholds the values, integrity, and policies of the City and police department, and we are taking the necessary steps to make sure these actions are never repeated.” 

***

“There is no excuse, under any circumstances, for what happened to Ms. Garner. We have agreed on steps we need to take to begin building back trust. While these actions won’t change what Ms. Garner experienced, they will serve to improve this police department and hopefully restore faith that the LPD exists to serve those who live in and visit Loveland,” Chief Bob Ticer stated.

Criminal charges are still pending against the officers involved in the violent takedown,  in her arrest, and for the detention of the injured woman who was then left without medical care in a holding cell while officers sat comfortably in a booking room, reviewing their own bodycam videos, appearing to laugh over the sound of her breaking arm.  For more, read here and here. 

There is a lot of work still ahead for so many police and detention units.  

Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court

In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."  

In Hornibrook v. Richard,  the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator.  The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons.  It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.

Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home.  The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.   

The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity."  The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity. 

Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale. 

The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:

"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."

One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling.  But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.  

What Happens When You Are "Widowed," Not by the Death of Your Spouse, But By Alzheimer's?

New York Times Magazine has an Ethicist Columnist and recently the topic was "My Stepdad Has Alzheimer's. Can My Mom Date Someone Else?"

The adult child who raises the topic explains that her mother was a long-standing, full-time caregiver for her husband, who's early-onset diagnosis of Alzheimer's had deepened to the point that he was transferred to a more appropriate, assisted-living setting.  Lonely and missing companionship, the mother began dating another man.  On the one hand, the ethicist was tackling the concern about the appropriateness of the couple "dating."  The deeper concern, however, appeared to be that the man the mother was dating might not be a good choice, and potentially even an unsafe choice, and the family disapproved.

On the question of "dating" while still married to a spouse with dementia, the ethicist, Kwame Anthony Appiah (who teaches philosophy at NYU), makes the startling, but apt, observation about de facto widowhood:  

Making sure that a spouse is cared for is one commitment that marriage entails and, having served as a full-time caregiver, your mother has clearly done so, at real personal sacrifice. But we should not want our spouses to abjure the companionship of others once we are no longer available to them. Indeed, nobody in your family has the right to expect this of her. The painful truth is that her status is ethically equivalent to that of a widow.

The comments posted after the article in response to the ethicist's discussion are also interesting, including what sprang to my mind, a recommendation of  a sensitively-made movie directed by Sarah Polley, based on the author Alice Monroe's novel with the same title, Away from Her. 

 

Star Trek Legend Conservatorship Battle

I'm a fan of Star Trek. I'm not a hard core Trekkie, but I enjoy all the variations of Star Trek, whether movie or TV.  I was saddened to read about a conservatorship battle surrounding the trailblazing actor Nichelle Nichols, our beloved Lieutenant Uhura. Inside the heartbreaking conservatorship battle of a 'Star Trek' legend explains that "[a] three-way fight over Nichols’ fate involves her only child, Kyle Johnson, who is also her conservator; her former manager Gilbert Bell; and a concerned friend, Angelique Fawcette."  Here's a brief summary. "In 2018, Johnson filed a petition for conservatorship, arguing that his mother’s dementia made her susceptible to exploitation. In 2019, Bell filed a lawsuit against Johnson, alleging attempts to remove him from Nichols’ guest home, where he has lived since 2010, and 'aggressive and combative behavior.'"  Here's how the neighbor came into the suit. "Fawcette, a producer and actress who met Nichols in 2012, entered the legal fight opposing Johnson’s conservatorship petition. Fawcette pushed for visitation rights to spend time with her friend, and she argued for Nichols to stay in Woodland Hills — a scenario that has looked increasingly improbable."

The article goes in depth into her life and career and how the current litigation came to be, including declining health, a power of attorney, transfers of assets, a conversation about marriage and more.  Ms. Nichols is not the first famous person to be in the center of a conservatorship fight, nor will she be the last. 

Thanks to Julie Kitzmiller for sending me the link to the story.

This CLE Is Worth Watching: #FreeBritney: Transforming & Reforming Conservatorship & Guardianship.

I had blogged a while back about this CLE, - #FreeBritney: Transforming and Reforming Conservatorship and Guardianship .  It was just excellent, and the recording is now available.  The program was sponsored by the ABA Section of Civil Rights and Social Justice, Commission on Disability Rights, and Commission on Law and Aging.   The recording is available here.

Here's a  description of the program:

Britney Spears’ conservatorship battle has shed light on the widespread problems and overuse of conservatorships/guardianships nationwide. Guardianships can be abusive and unnecessarily strip individuals of their civil rights to make their own decisions and use supports to live and direct their lives. Disability, aging, and civil rights advocates are calling for changes to reduce the overuse of guardianship and conservatorship, to strengthen recognition and use of less restrictive alternatives to guardianship like supported decision-making, and increase due process protections in guardianship proceedings and in the monitoring of guardianships. Our panel of experts discusses the risks and harms of guardianship, its systemic flaws, and the promise of alternatives like supported decision-making. They discuss reforms and changes that can address the problems that Britney Spears’ case has brought to light.

Put some time on your calendars to watch this very important CLE.  Don't forget to scroll down the page to check out the resources that are provided.

 

 

Hidden Costs of Caregiving

Vox recently published The staggering, exhausting, invisible costs of caring for America’s elderly. "As someone ages, their health appears to gradually deteriorate in a way that doesn’t seem alarming. Most of the time, though, they’re inching toward a cliff — and when they fall off, they find themselves on another health cliff, and another, and another. With each cliff, it gets more difficult for a family member to catch them."  Lack of long term care insurance and a lack of understanding of what Medicare covers leaves many unprepared when the need for caregiving arises.  Nursing homes remain expensive and concerns arising as a result of COVID remain relevant today, the article notes. The impact on caregivers is highlighted in the article. Here are some excerpts:

[M]ost of this care work — both paid and unpaid — remains invisible. According to the most recent data from the AARP, an estimated 41.8 million people, or 16.8 percent of the population, currently provides care for an adult over 50. That’s up from 34.2 million (14.3 percent) in 2015.

Of those caregivers, 28 percent have stopped saving, 23 percent have taken on more debt, 22 percent have used up their personal short-term savings, and 11 percent reported being unable to cover basic needs, including food. The average age of someone providing care for an adult is 49, but 23 percent are millennials and 6 percent are Gen Z. Sixty-one percent are women, and 40 percent provide that care within their own homes, up from 34 percent in 2015.

A lot of these caregivers are really, really struggling. What’s required of them is more complex and time-consuming than just 10 years ago, as caregivers deal with overlapping diagnoses related to physical health, mental health, and memory loss as the elderly live longer. The work is much more than just clearing out the guest room or setting another place at the dinner table.

I find the article thoughtful and thought-provoking. It's worth reading and I'll use it in my class.  Consider this excerpt:

t’s only recently that we’ve settled on the understanding that care for elders is natural, moral, and ideal, even when the people providing this care are suffering or lacking the skills to provide the quality of care the recipient requires, or both. Crucially, by locating responsibility for care squarely on the family unit, it also continues to limit or excuse greater society — which is to say, the government — from the responsibility of providing care to the most vulnerable members of society. Our belief that the family is always the best and preferred care provider makes it much harder to advocate for the sort of larger, taxpayer-funded systems that would make all care, regardless of whether it’s provided by a family member, far easier.

There are other consequences to this naturalization of family responsibility. When labor is continually framed as something done out of love or instinct, it loses its connotation as labor and, by extension, its value. When women (and white middle-class women in particular) began moving into the workforce en masse in the second half of the 20th century, they didn’t quit their domestic work. They just did two jobs, one layered on top of the other; they would put in a full day in a traditional workplace for pay, then went home and kept working, unpaid.

Many women could only juggle these two separate jobs with the help of other women, both paid and unpaid. Poor working women had been doing this for some time, relying on “kith and kin” for child care in particular. Some middle-class women increasingly began to do the same, relying on friends but mostly family, while some began paying other women to do the work. This domestic labor, whether in the form of child-rearing, laundering, cleaning, or cooking, was essential, but because it had been so thoroughly normalized as unpaid work, it was also easy to normalize incredibly low wages for those who do it, even if that person had no relation to the family.

The article discusses the stresses of, and costs from caregiving and concludes with a sense of urgency regarding a looming crisis, if action isn't taken

Right now, several experts told me, the public alarm around the state of elder care is about where it was with child care 10, 15 years ago. We didn’t act on the alarm bells when it came to child care, and now the system is in a pandemic-accelerated crisis, with rippling effects across the economy. The question, then, is whether we want to wait the 10, 15 years for that implosion, right as even more Gen X-ers, millennials, and older Gen Z-ers age into caregiving roles and, shortly thereafter, need their own care. Or do we want to address the problem now, before it risks collapsing us, and our families, entirely.

Thanks to Morris Klein for sending me the link to this article.

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.  

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."

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.

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?  

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.

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