Elder Law Prof Blog

National Guardianship Network New Video

The National Guardianship Network [Has Released A] New Video with Recommendations for Reforming Guardianship System.This video 

showcases the highlights of the Fourth National Guardianship Summit and the 22 recommendations to reform and improve state guardianship systems. The video also addresses the history of these national summits, the importance of the Fourth Summit and the main topics discussed during the Summit:

• Rights of Persons Subject to Guardianship

• Supported Decision-Making

• Limited Guardianship, Protective Arrangements, and Guardianship Pipelines

• Rethinking Monitoring and Addressing Abuse by Guardians

• Fiduciary Responsibilities and Tensions

• Developing a Guardianship Court Improvement Program

To view the video, click here.

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

What's A Neighbor to Do? When friends need assistance....

This tends to happen in waves, but I've been receiving a lot of calls lately from people who are concerned about an aging neighbor or a casual friend. 

For example, in one communication, the caller was worried about a neighbor lady in her 80s who had stopped her on the sidewalk recently to ask for a recommendation for an attorney to come to her house.  She seemed to want help "working out a proper arrangement" for a younger person to live in her house on a rent-to-own type of contract.  The older neighbor didn't seem to have money to maintain the house.  A complication -- more than a solution -- was the fact the woman had adult children, but didn't want to "bother" them and they lived out-of-town.

In the second situation, it was an early morning text, asking for help for a friend, where an agent, operating under a "new" Power of Attorney, was denying permission for the live-in Significant Other to visit the friend now that she was in assisted living.  Apparently the SO was raising objections about  the quality of care (or maybe just the lack of appropriate care) in AL.  Suddenly a POA surfaced, purporting to give authority for an out-of-state relative to direct the AL to deny the SO's visits because they were disturbing the patient.   

Red flags everywhere in these fact patterns.

Both of these fact patterns are variations on a theme.   Protective service units (if they have sufficient staffing) and long-time Elder Law attorneys can often respond effectively.  But one of the biggest changes I've found since the pandemic is finding "live" people who might be available and willing to help. Shortages of staff, overworked solo attorneys, budget cutbacks -- all play a part of the challenges to find effective services to assist older adults.

All of this puts a premium on advance planning -- for more than "just" wills or trusts.

When we wait until we are already seriously ill or until we are in our 80s, we are running a huge risk that we won't get the advice and counsel we need to make sound, effective choices.  We need to make these plans while we still "clearly" have capacity.  If the person with cancer had added instructions and her preferences about visitors before surgery, it would be less likely she is denied time with someone who cares enough to seek better care.  

 

Victoria Law Foundation Hosts International Access to Justice and Legal Services Forum in Australia March 30 through April 1

I had the unique privilege of joining an interdisciplinary team of professionals discussing timely concerns about access to justice for older persons, not only in the host country of Australia but around the world.  Our session, entitled Legal Need, Empowerment and Older People, began with Susannah Sage Jacobson and Eileen Webb, academics from the University of South Australia, who addressed ageism and specific examples of abuse, followed by Frances Batchelor, Acting Director of the Australian National Ageing Research Institute, discussing new consumer-based research on quality of residential care.  The International Access to Justice Online Forum is hosted by the Victoria Law Foundation and the UCI Law Civil Justice Research Initiative, with panelists across the three days of programming from Australia, the U.S, Canada, New Zealand and the U.K.  There is still time -- depending on which side of the international date line you reside -- to catch more presentations as the event runs through April 1, 2022.

In addition, research papers and reports and video captures of the program are being posted online.  Take a good look!  

2022 Adult Guardianship Guide

The National Association for Court Management announced the release of the updated Adult Guardianship Guide.

The executive summary points out  the

Issues identified in this guide which are critical for planners to consider include: • Strengthening protections and enhancing rights of persons subject to guardianship • Identifying alternatives to guardianship including supported decision-making • Providing meaningful due process including access to counsel
• Identifying opportunities for modification, termination, and restoration of rights • Identifying, tracking, and documenting the number of guardianship cases and adoption of data standards • Implementing meaningful guardianship monitoring • Formalizing a process for bringing complaints or concerns to the attention of the court • Developing response protocols for abuse, neglect, or exploitation • Developing readily accessible materials for the public including clear, plain language forms and informational resources • Developing and institutionalizing training programs and materials for judges and court staff, judicial officers, managers, staff, and volunteers to include specialized training to recognize and identify abuse, neglect, and exploitation • Developing and institutionalizing training programs for guardians • Maintaining and strengthening relationships between the courts and the local probate bar while promoting the importance of court-community collaboration • Regularly evaluating guardianship processes and outcomes.

The guide includes several appendices and resources. The section on the future offers this "This Guide challenges court managers to make efforts that will lead to improvements in the way courts handle cases involving our most vulnerable adults. NACM underscores the need for prioritization and funding of the management of guardianship cases, while offering practices and models that can be implemented—some at little or no cost—to bring court practices in line with recommendations of the Fourth National Guardianship Summit and the NPCS."

If you go through the NACM website, although the guide is free, you may have to set up an account to download it. It will be posted on the National Center for State Courts website (I checked on 2/22/22 and the updated guide had not yet been posted).You can download the 76 page guide directly here.

 

On an unrelated note, University of Illinois College of Law is looking for a Dean of Students & Assistant Dean for Academic Administration.  For info about the position or to apply, "submit a resume, cover letter, and the names and contact information of three professional references at : https://jobs.illinois.edu/academic-job-board/job-details?jobID=159975&job=assistant-dean-for-student-services-dean-of-students-college-of-law-159975 by March 31, 2022. For assistance with the application system, please email rietz@illinois.edu."

The cool part of the job-you get to work with elder law Rockstar, Professor Richard Kaplan!

 

Has the Pandemic Made You Less Active? If So, You Are Not Alone.

The New York Times a couple of weeks ago ran an article noting that during the pandemic, many elders were less active than before. The Pandemic Has Made Many Seniors Less Active explains that some who work remotely or just cut back on outings found they experienced physical decline.  Those who had COVID in varying degrees experienced even greater physical decline..

Nearly half of those 65 and older who had contracted Covid reported less ability to engage in physical activity like walking and exercising than before the pandemic — but so did about one-quarter of those who did not become infected. Smaller proportions of those uninfected said their ability to move around the house, and to do housework like dishwashing and dusting, had also declined.

Although some of that decline might reflect normal aging, the study measured changes over only a nine-month period. In people who did not develop Covid, “the most plausible reason for the decline is public health restrictions during the pandemic....” 

But even those who did not contract COVID still suffered some physical decline. One study  "found that almost 40 percent of those over 65 reported both reduced physical activity and less daily time spent on their feet since the start of the pandemic in March 2020. In this representative national sample, those factors were associated with worsened physical conditioning and mobility."

Although I don't think we need this reminder, the article offers it to us: "Physical function is key to living independently — the future that a great majority of older people envision for themselves. A loss of mobility and function across a considerable proportion of the senior population could mean increasing disability, a greater need for eventual long-term care, and higher Medicare and Medicaid costs.'"

Now-get up and take a walk!

Webinar Elder Justice Decision-Making Capacity Symposium

Register now for this important virtual symposium from DOJ's Elder Justice Initiative, scheduled for April 19th through April 21, from 1-5 eastern.  Here's a description about the Symposium.

Every day the lives of older adults are profoundly and negatively impacted in both the criminal and civil justice systems based on mistaken assumptions and inadequate assessments of their capacity to make decisions for themselves. In order to raise greater awareness of these issues and improve how elder justice professionals approach these issues, the Department of Justice will be hosting the Elder Justice Decision-Making Capacity Symposium, a three-day virtual conference on April 19-21.

The Symposium will highlight what we know today about the aging brain and its impact on decision-making, and discuss the protocols and tools available to assess decision-making capacity. The Symposium will then focus on the myriad of ways that perceptions of an older adult’s decision-making capacity can have profound implications on their treatment in criminal and civil proceedings. These may include elder abuse or fraud prosecutions not being pursued; unnecessary or inappropriate guardianships being imposed; and civil legal remedies being denied to older victims of elder abuse, neglect and financial exploitation.

By shedding light on the latest science as well as best clinical, legal and judicial practices, the Symposium aims to increase access to justice while promoting the autonomy of older adults.

Free Symposium provided by the Elder Justice Initiative, U.S. Department of Justice.

Click here to register.

Will Medicare Part B Premiums Drop in 2022?

Last fall I had blogged about the significant increase in the Medicare Part B premiums for 2022. Part of the increase was due to the cost of the new Alzheimer's drug.  There have been developments since the Part B premium was announced.  Here are a couple. First, the AP reported on January 10, 2022 that Medicare told to reassess premium hike for Alzheimer's drug.

" U.S. health secretary Xavier Becerra on Monday ordered Medicare to reassess a big premium increase facing millions of enrollees this year, attributed in large part to a pricey new Alzheimer’s drug with questionable benefits.  [This] came days after drugmaker Biogen slashed the price  [about in half]."  Based on that cut, the Secretary determined that a review of the 2022 premium was appropriate. This is no guarantee that the Part B premium will be reduced, but the article notes that beneficiaries will [not] see [an] immediate change to their costs, but Monday’s move could open the way for a reduction later in the year. The Department of Health and Human Services says it is reaching out to the Social Security Administration, which collects the premium, to examine options."

Second, Kaiser Health News  included summaries of stories from several news outlets regarding the decision by CMS regarding coverage of the new Alzheimer's drug  Medicare To Limit Coverage Of Contentious And Costly Alzheimer’s Drug.  For example, the AP story, Medicare limits coverage of $28,000-a-year Alzheimer’s drug, "The initial determination from the Centers for Medicare and Medicaid Services means that for Medicare to pay, patients taking Biogen’s Aduhelm medication will have to be part of clinical trials to assess the drug’s effectiveness in slowing the progression of early-stage dementia as well as its safety. Medicare’s national coverage determination would become final by April 11, following a public comment period and further evaluation by the agency."  The drug manufacturer disagrees with the decision.

So what will be the impact of the price drop, the reassessment and the coverage decision?  Stay tuned.

Sad News: The Passing of Civil Rights Advocate Lani Guinier, Reportedly of Complications of Alzheimer's

I read the news late on Friday of the passing of Lani Guinier and it was especially sad to learn that family members reported her death, at just 71, was due to "complications of Alzheimer's disease."  That report made me realize that I hadn't heard from her on the important civil rights issues of the last few years -- and this history probably explains why.  Nonetheless, her teaching, her writing, her advocacy in court and in the field on behalf of civil rights, on voting rights, on student empowerment (often on behalf of women in law school classrooms, urging them them to speak out) will continue to impact the nation.  In her 2002 book, The Miner's Canary -- sitting nearby on my shelf --  cowritten with Gerald Torres, the conclusion resonates with equal strength in 2022:   

We credit the civil rights movement and the liberal legal model to the extent that each created a space for progressive politics and reduced racism as conventionally defined.  This tolerance model has made alliance possible that were once unthinkable.  But the civil rights movement too often seems to measure progress by looking backward; we want to shift the focus to where we are going, not how far we have come.  In the past, conventional ideas of race were deliberately tied to issues of social policy in order to make programs of general concern sound like special pleading.  Our response is to reclaim race in order to "complete" democracy."  

With grateful feelings, and remembering her as a role model for so many, we will miss her.  

It is Time to Rethink "Waiting Rooms"

Today I read an interesting Washington Post article about a judge in a northern New Mexico town who has been willing to rethink criminal justice for drug-related offenses.  The approach this judge is taking goes beyond the "drug court model, once widely viewed as a progressive alternative to jail." As described in The Judge Who Keeps People Out of Jail,  Judge Jason Lidyard meets directly with participants in his program, outside the court house, to discuss progress one-on-one:  

He does not expect his clients to abstain from using -- in fact, he assumes the contrary. 'I don't care if you're high, so long as you show up here,' he tells one.  And informed by childhood memories of his own father's addiction, he categorically refuses to use jail as a sanction. 'Only two things will get you kicked out,' he explains. If you don't show up, or if you commit new crimes.

My own work doesn't focus on criminal justice.  But I am ever more intrigued by the willingness of some prosecutors, jurists and court systems to rethink solutions to different forms of problematic behaviors.

This article also intrigued me because I had recently spent an evening in an emergency room of a small town hospital. An older friend -- in her 90s -- had been waiting since early afternoon for diagnosis of symptoms of light-headedness, "waves" of confusion, and sudden inability to walk normally.  Her symptoms were serious.  After more than an hour at an urgent care facility, transfer by ambulance and 3 hours in the hospital's ER, some tests had been conducted.  But when I arrived the results were not available and she had yet to see a doctor.  Friends and then her daughter (driving several hours from her home in a large city) had been taking turns sitting with her and hoping to get some recommendation about how best to handle these worrisome symptoms. 

Over the last few years, as I suspect is also true for many of our readers,  I've done this same sort of "camping out" in ERs in multiple hospitals with aging friends and family members.

But that evening was startling in the intensity of what I was observing.  Every chair in this relatively new hospital was taken, and even more patients were sitting in wheelchairs.  There was only one person at the "intake desk" and it is an understatement to say that person was suffering from front-line burn out.  Rather, she was in full flame.  

At least a third of the patients I was seeing were "older."  Some of them had no family members with them.  One woman, with no family and clearly deeply affected by some form of dementia, was wrapped in a blanket, no shoes, and, I realized, no clothes on under the blanket. She was wandering, and moaning, very unstable on legs that appeared distorted by cellulitis.  Another patient was holding one of his legs in the air with his own hands, as he was in such pain that he couldn't stand to have his foot touch anything -- and no wonder, as I could see a large, weeping hole in the center of the foot.  I was moving in and out of that ER for about 4 hours.  Many of the patients that were sitting with agonized expressions on their faces when I first arrived at 6 p.m. were still in the same location when I left for the final time just after 11 p.m.  There were no hospital rooms available.  Period.  

My friend could not take the chance of going home to wait for the tests results, and it was clear that if she did so, no one would be available to talk with her by phone who could give an informed diagnosis and discuss options.

COVID-19 and certainly the recent variants, have exposed and intensified what has long been a problem for hospitals: the process of emergency admissions.  My father, years ago, summarized the problem accurately even while he was in the early stages of dementia.  "I would rather die on the steps than spend one more night in that place" -- referring to the ER.

But it isn't just emergency rooms at hospitals.  I've had to abandon waiting rooms in doctors' office, dentist offices, even the pharmacy, because whomever I was bringing in for help was panicking when they felt trapped in chairs that they were afraid to even touch. Post-Covid-personnel shortages at all levels of care are clearly making the problem of access to health care very problematic. But I suspect the problem pre-existed the pandemic.  (Inadequate, un-separated seating in airport lounges and transport buses? I'm thinking of you too!)

Solutions?  I'm not sure.  But certainly some creative minds could tackle this.  I know some care-sites ask patients, if possible, to wait in their cars to be called in for the actual appointment.  But that doesn't work for many older persons, especially in hot or cold weather, or where it is a very long walk to get to a bathroom.  

I do know that one source of help I stumbled across in one state was using the non-emergency number for the 911 responders in the area.  In that state, I discovered calling that number resulted in a "first available" non-emergency response by a team of trained professionals who could do high level assessments, and who could help prioritize any needed transport to the ER.  But that doesn't' seem to be a uniformly available alternative in all states.

There is a saying, sometimes attributed to Winston Churchill (probably incorrectly) reminding us to "never let a good crisis go to waste."  Let's use the current crisis to rethink ways to more effectively access health care assessments.  Certainly that would be better for patients, but also for the front-line responders.  

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.