Friday, April 29, 2022

Filial Friday: Virginia Governor Blocks Attempt to Repeal Virginia Filial Support Law

As is true with several U.S. states, Virginia has a filial support statute that can obligate adult children to support their parents.  The key language of VA Code Ann. Section 20-88 provides:

It shall be the joint and several duty of all persons eighteen years of age or over, of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father, he or she being then and there in necessitous circumstances. 

 

If there be more than one person bound to support the same parent or parents, the persons so bound to support shall jointly and severally share equitably in the discharge of such duty. . . .

 

This section shall not apply if there is substantial evidence of desertion, neglect, abuse or willful failure to support any such child by the father or mother, as the case may be, prior to the child's emancipation or, except as provided hereafter in this section, if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program. . . . 

There are few modern cases applying this law. In Peyton v. Peyton, an "unreported" Virginia chancery court decision from 40 years ago, the court applies the law to obligate one brother to reimburse another brother $8,000, representing half of the past out-of-pocket expenses for their mother's care in a nursing home. A careful reading of the Peyton case reveals one of the challenges of applying filial support laws when used to collect "back" expenses; here the second son was willing to pay a portion of their mother's monthly costs going forward but he was not successful in arguing a statute of limitations should apply to prevent liability for multiple years of back claims. 

As with other American states that have had forms of filial support laws, Virginia's law was enacted as an alternative to public welfare laws because the common law generally found no legal duty for adult children to support indigent parents.  But, in Virginia, again as in most American states, the filial support laws are largely dormant, misunderstood or ignored, especially after Social Security, Medicare, and Medicaid laws were enacted on a federal level beginning in the 1960s.  

Virginia's  statute was amended decades ago to restrict use of the law by the state to seek reimbursement for its costs in providing public services (such as "medical assistance" a/k/a Medicaid).  However, unlike the filial laws of most states, Virginia's law permits criminal prosecution as a misdemeanor for "any person violating the provisions of an order" of support under this statute, with a fine not exceeding $500 or imprisonment in jail for up to 12 months.  I find no reported cases of criminal enforcement actions.

Recognizing that other states (including neighboring Maryland in 2017) had recently taken formal action to repeal filial support laws as outdated or impractical, Virginia Senator Adam Ebbin introduced 2022 Senate Bill 389 to repeal Virginia's law. Senator Ebbin's bill passed with no dissenting votes in the Virginia Senate.  The final vote in the Virginia House, on March 11, 2022, supported repeal with 81 voting in favor, and only 16 members voting in opposition to repeal. In other words, repeal was not a controversial measure; rather it appeared to be part of an attempt to clean-up hoary laws, and it attracted strong bipartisan support.

Nonetheless, Virginia Governor Glenn Youngkin (sworn into office in January 2022) vetoed the repeal on April 11, 2022.  His reasoning for preserving filial support laws is unique, at least in my 20-some years of experience researching filial support laws (see e.g., Filial Support Laws in the Modern Era: Domestic and International and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent Parents, 20 Elder Law Journal 269 (2013)).  

The governor's veto statement explains:

"Primarily, the Commonwealth's filial responsibility law supports those who care for their elderly parents.  In establishing a bankruptcy budget, the court allows for necessary and reasonable expenditures and the repeal of Section 20-88 could prevent an individual from covering these expenses within the budget of their debtor.  For those undergoing bankruptcy proceedings, there is a grave risk of unforeseeable and unintended consequences, which may harm people going through some of the most difficult times in their lives."

On the one hand, in today's torn asunder political scene, no one should be surprised that a newly elected governor of one party would be vetoing legislation sponsored by a member of the other party -- and that is true here, with a Republican governor vetoing a bill proposed by a Democrat.  

But what about the proffered reason for the veto?  Virginia's law does not "primarily" support those who care for their elderly parents.  Rather, it creates an obligation for adult children. Is there any precedent for a theory that Virginia's filial support law permits some type of sheltering of assets for a debtor in bankruptcy court, to provide a means of financial support for the (also) destitute parent?  Certainly I find no modern cases on Lexis or Westlaw suggesting such use or even a need for such use.  

There is a reported case from 1938 in Virginia.  In Mitchell-Powers Hardware Co. v. Eaton, 198 S.E. 496 (Supreme Court of Appeals, VA 1938), the court addressed a question of whether a transfer of valuable stock by a debtor to his sister was voidable as an invalid gift.  Was this an invalid attempt to defeat a legitimate creditor's lien against the asset? The court recognized that under Virginia's predecessor version of Statute 20-88, the debtor "could" have an obligation to assist his sister in the care of their elderly mother. The appellate court remanded the case for a jury determination of whether the mother was actually destitute and in need of the son's financial support. (The sister had further transferred the stock in question onward to the debtor's son).  This hardly seems a persuasive case for characterizing filial support laws as necessary "support for those who care for their elderly parents."

April 29, 2022 in Crimes, Current Affairs, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, April 26, 2022

What Are Your Examples of Scarecrow Laws?

I'm working on a book chapter about filial support laws, where families (usually adult children) may be surprised to learn that their state or their country has a seldom-used law that mandates financial support or maintenance for indigent family members. In working on this chapter, I was considering using the concept of "scarecrow laws" as a metaphor.  This label can apply to laws which are seldom enforced but legislators resist repeal because the very existence of the law might serve as a warning -- a scarecrow -- about the consequences of bad behavior.

While working on the metaphor, I came across an interesting application from Shakespeare's play, Measure for Measure.  In Act 2, Scene 1, we hear a harshly ambitious deputy administrator calling for the ultimate punishment -- beheading -- of Claudio, a man convicted of a crime.  But the law in question, prohibiting sexual relations outside of sanctioned marriage, is "rarely enforced."  One of Angelo's subordinates objects to the harsh sentence. Angelo responds:

We must not make a scarecrow of the law,

Settling it up to fear the birds of prey,

And let it keep one shape, till custom make it 

Their perch and not their terror.

The irony is that Angelo also seeks to violate the same law with a woman who has attracted his attention, but he discounts his own admission as, so far, mere temptation.  

Shakespeare's use of the scarecrow characterization raises a legitimate question.  Should laws, little known and rarely enforced, be removed from the books, or allowed to remain, perhaps on the justification they serve as moral guidance?  

April 26, 2022 in Books, Crimes, Current Affairs, Discrimination, Ethical Issues | Permalink | Comments (0)

Thursday, April 14, 2022

AARP BankSafe Initiative Training for Retail

AARP has launched a new initiative to fight gift card scams. This is a super important project!  According to the website, 

With gift card fraud, a scammer may pretend to be someone they are not in an attempt to convince the unsuspecting person to pay them in gift cards. This type of scam can take many forms: • The scammer, claiming to be from “tech support,” says there is something wrong with a person’s computer, and that the person will need to pay in gift cards in order for tech support to fix the problem. • Posing as a user of a dating site, the scammer says they have an emergency and need another site user to help them by buying them gift cards. • Through a phone call the scammer pretends to be a relative in trouble who needs their target to send them gift cards. • Claiming to be from the IRS or Social Security, the scammer states that the person has a fine or owes back taxes that can only be paid by gift card. • The scammer impersonates the target’s utility company and threatens to shut off service unless they pay an overdue bill with gift cards.

More information about the scam and the training of retail employees is available here.

April 14, 2022 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, March 30, 2022

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

Victoria Law Foundation International Access to Justice and Legal Services Forum
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!  

March 30, 2022 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

Tuesday, February 22, 2022

Slam the Scam Day

What will you be doing on Slam the Scam Day? Being a safe and smart consumer?  The SSA Inspector General announced in a press release that Slam the Scam day will be held on March 10, 2022.

Slam the Scam Day is an initiative to raise public awareness of the pervasive scams that continue to plague the nation and is part of the Federal Trade Commission’s National Consumer Protection Week, (NCPW) happening March 6-12, 2022. The initiative, which began in 2020 to combat Social Security-related scams, is now expanding to include other government imposter scams. In a government imposter scam, someone claims to be an SSA, or another government employee, and may ask for personal information, demand payment, or make threats. These scams primarily use the telephone, but scammers may also use email, text messages, social media, or U.S. mail.

The focus of this year's initiative is spotting the scams. "SSA OIG provides resources on its website and posts tips and warnings on social media platforms.  There will be webinars and social media chats to give the public information that empowers them to Slam the Scam."

 

February 22, 2022 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, Other, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 14, 2022

Maine Releases Elder Justice Roadmap

A couple of weeks ago Maine's Governor released the new Elder Justice Roadmap.

Two years of work went into developing the road map, resulting in "the 21-member Elder Justice Coordinating Partnership [identifying] challenges to the prevention of, detection of, and response to elder abuse in the State of Maine and [developing] strategic priorities across the public and private sectors to prevent and respond to elder abuse. These recommendations, contained in the Elder Justice Roadmap, range from improvements in direct victim services, public and professional education, public policy and data collection and evaluation." 

The snapshot of the roadmap leads off with noting that  "There is a health, justice, financial, and social crisis facing Maine: • Research shows that one out of ten adults aged 60 and older have experienced abuse in the past year. That means tens of thousands of older Mainers experience elder abuse every year. • Abuse is most often committed by a trusted person, including intimate partners, adult children, and other family members. • The adverse health and broad economic impacts of elder abuse are well documented."  The snapshot notes that "[t]he Roadmap contains recommendations to achieve three desired results: 1. Decrease the incidence of elder abuse; 2. Increase the number of elder abuse victims who seek and receive help in stopping abuse; and 3. Improve the multidisciplinary response to elder abuse."

The full 122 page roadmap is available here.

 

February 14, 2022 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Podcast on Nursing Home Neglect

The National Consumer Voice for Quality Long-Term Care is offering a podcast with Dr. Laura Mosqueda on Nursing Home Neglect: Preventing It and Getting Help. Here's a description of the podcast:

The pandemic has renewed concerns about the quality of care that residents receive in some nursing homes, and many family members have reported significant decline in the condition of their loved ones. Neglect and abuse of older adults is a long-standing problem that is under-reported and has not received the necessary attention and response from policymakers, yet it results in needless and preventable suffering and harm.

In this episode with Dr. Laura Mosqueda, a professor of Family Medicine and Geriatrics at the Keck School of Medicine at the University of Southern California, we talk about neglect, which is the failure to provide goods and services to an individual that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. Neglect may or may not be intentional.

The link to the podcast is here. You can subscribe to the podcast series from this page as well as find information about the Consumer Voice's YouTube channel.

February 14, 2022 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, State Cases, State Statutes/Regulations, Web/Tech | Permalink

Wednesday, February 2, 2022

Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit

The Department of Justice Elder Justice Initiative u has announced the release of Senior Abuse Financial Tracking and Accounting (SAFTA) Toolkit.

Guided by the adage “A picture is worth a 1000 words”, the Senior Abuse Financial Tracking and Accounting (SAFTA) tool provides elder justice professionals with a simplified forensic instrument for illuminating suspicious financial patterns and facilitating the prosecution of suspected elder financial exploitation.

Developed by a forensic accountant, the SAFTA tool is an Excel macro-enabled worksheet into which financial records are entered and pivot tables and graphs are automatically created to provide a visual depiction of financial data. The tool is downloaded onto the user’s computer to ensure a secure working environment.

SAFTA is not intended to turn law enforcement officers into forensic accountants. Rather, it is designed to enable law enforcement officers to gather financial records and convert those records into forensically relevant visual depictions of the financial records. SAFTA works best on cases of low to moderate complexity.

A short training video about the toolkit is available here.

February 2, 2022 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs | Permalink

Friday, January 21, 2022

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.

January 21, 2022 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, Web/Tech | Permalink | Comments (0)

Wednesday, January 19, 2022

Register Now: EJI Webinar: Trauma Informed Counseling for Older Adults – 1/27/22

DOJ's Elder Justice Initiative announced an upcoming webinar on Trauma Informed Counseling. Here's info about the webinar

Many older adults have been exposed to trauma in their lifetime. They may have been exposed to violence, discrimination, natural disasters or have survived a past crime.

The accumulation of past trauma experiences can exacerbate symptoms related to a current trauma.

In this webinar, attendees will learn:

- the importance of referring older survivors of crime to counseling services,

- the factors that increase an older adult's risk for future victimization,

- how counseling services can help a survivor and aid in your professional role,

- and what types of counseling resources are available to older adults.

Issues pertaining to cultural sensitivity and ethical dilemmas will be explored.



Speaker:

Sheri Gibson, PhD

To register, click here.

January 19, 2022 in Consumer Information, Crimes, Current Affairs, Other | Permalink | Comments (0)

Friday, December 17, 2021

Using Dark Web to Steal Older Americans' Identities

The U.S. Attorney's Office for the Northern District of Georgia released a press release that Two Georgia men sentenced for using Dark Web to steal identities of elderly victims. According to the press release, here's how the scam worked. "[T]he charges, and other information presented in court: [two perpetrators] purchased personal identifiable information (PII) from dark net markets and used the information to open credit accounts using the victims’ information. They then forwarded the phone lines, mailing addresses, and the emails of their victims to their control. This allowed [the perpetrators] to impersonate victims with creditors and prevented victims from learning about the fraud."

One defendant "was sentenced to three years, ten months in prison for access device fraud, to be followed by two consecutive years imprisonment for aggravated identity theft.  He was also sentenced to serve three years of supervised release and ordered to pay restitution in the amount of $108,397.55.  [He] was convicted on these charges on May 14, 2021, after he pleaded guilty."  The other defendant "was sentenced to one year, six months in prison for access device fraud, to be followed by two consecutive years imprisonment for aggravated identity theft.  He was also sentenced to serve three years of supervised release and ordered to pay restitution in the amount of $66,097.55.  [He]was convicted on these charges on September 9, 2021, after he pleaded guilty."

Thanks to my friend and colleague Professor Bowman for sending me the link to the press release.

 

December 17, 2021 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

Tuesday, November 23, 2021

COVID and Elder Abuse

A  recently released article from the Fall 2021 publication of the National Association of Social Workers explores the impact that COVID had on the number of elder abuse cases. Elder Abuse & COVID-19 explains that "[t]he novel coronavirus (COVID-19) pandemic has had a profound and disproportionate impact on older adults, including apparent increases in elder abuse. This publication explores these effects and highlights resources developed by social workers and other service providers to support practice with older adults."  The article cites a study by Dr. Pamela Teaster and others (Dr. Teaster is a friend and ROCK STAR researcher) that showed that "81 percent of Adult Protective Services (APS) personnel related having received “fewer or many fewer” reports of adult maltreatment within the first six months of pandemic shutdown."  Citing a number of other studies, the author notes that COVID led to an increased risk of elder abuse.  The article discusses the impact of sheltering at home and a freeze on visitation in long-term care facilities as heightening the risk of elder abuse.

[T]he pandemic has provided fertile ground for multiple types of fraud and scams, many of which affect older adults. Common schemes include (a) COVID-19 testing, treatment, and vaccine scams; (b) imposter scams, in which an individual pretends to represent a relative, charitable organization, government agency, or other trusted source to steal money or financial information; (c) Economic Impact Payment (stimulus check) scams; (d) home and mortgage scams (to make improvements, prevent foreclosure, or modify loans; and (e) identity theft. The financial strains many older adults experience during the pandemic can increase the risk of experiencing fraud and scams.  (citations omitted). 

The article concludes by highlighting some of the actions of social workers to "prevent, identify, and respond to elder abuse."

November 23, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship | Permalink | Comments (0)

Sunday, October 24, 2021

FTC Report to Congressional Committees On Protecting Older Adults 2020-2021

Friday I wrote a post on the FTC resources on COVID Scams, and now I wanted to be sure you saw their recent report to Congress, Protecting
Older Consumers 2020–2021. Here is an excerpt from the introduction:

This past year, the global pandemic has hit the health and finances of older communities particularly hard. As can be seen from numerous FTC cases, older adults continue to be targeted by a wide range of scams and the unfair and deceptive marketing of products and services. This past year, the FTC’s law enforcement efforts included a focus on schemes capitalizing on the fears and economic uncertainty associated with the pandemic to deceptively peddle products related to the prevention and treatment of COVID-19. In addition to its law enforcement efforts, the FTC has redoubled its efforts to reach communities of older adults throughout the country with its varied outreach campaigns. The FTC also has conducted research regarding fraud reports filed by consumers nationwide, which reveals patterns and trends related to fraud impacting older adults. These analyses help inform the agency’s efforts to respond to the needs of older consumers.

This is the 4th year that the FTC has done this report; the Elder Abuse Prevention & Prosecution Act of 2017 added the reporting requirement. This year's report lists and discusses 15 actions that the FTC determined had a significant effect on older consumers and a summary of enforcement actions.  The report includes consumer outreach efforts as well as the strategies that the FTC is using to shield older consumers from these scams. Appendix A is a chart of the various cases from the year, a quick scan of which will give you a good idea of the types of scams being perpetrated against older consumers.

 

October 24, 2021 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Other | Permalink | Comments (0)

Tuesday, October 5, 2021

New Brief on COVID Scams

The Adult Protective Services Technical Assistance Resource Center (APS-TARC) released a new brief, COVID-19 Fraud and Scams: What APS Needs to Know. Noting the pandemic causes greater use of technology, increased isolation and changes to personal circumstances, the Brief discusses several COVID-related scams. These include healthcare scams, government impersonator scams, money transfer scams, charity scams, mortgage relief scams, helper scams, and scams around vaccinations, treatments for COVID, and tech. The Brief offers suggestions for prevention, agencies to contact for help,  and dealing with misinformation. 

October 5, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Other, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 27, 2021

Companion Animals Allowed in PA. Court?

I was interested in this recent opinion from the Penn. Supreme Court. Not elder law specific, but interesting info none the less. In Penn. v. Purnell, the court was reviewing

the appropriate test to apply to a trial court’s determination concerning whether a witness in a criminal case may utilize a “comfort dog” for support during his or her trial testimony. We hold that a trial court should balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant’s right to a fair trial. Here, the trial court allowed a witness to testify with the assistance of a comfort dog, and the Superior Court concluded that the trial court did not abuse its discretion in this regard. For the reasons stated below, we agree with the Superior Court and, therefore, affirm that court’s judgment." 

The issue arose when one witness to a killing was concerned about her own safety, so the State sought

a “comfort dog” be present during [the witness'] testimony. ... The motion explained that a sheriff’s deputy would transport the comfort dog, Melody, to the court and that the dog would enter the courtroom before the jury’s entrance.  According to the motion, the comfort dog would be placed in the witness stand outside the presence of the jury and would exit the courtroom after the jury left the room. (citations omitted).


After reviewing arguments and rulings from other states, the court determined "that trial courts have the discretion to permit a witness to testify with the assistance of a comfort dog. In exercising that discretion, courts should balance the degree to which the accommodation will assist the witness in
testifying in a truthful manner against any possible prejudice to the defendant’s right to a fair
trial and employ means to mitigate any such prejudice."

The full opinion is available here.

 

September 27, 2021 in Consumer Information, Crimes, Current Affairs, Other, State Cases | Permalink

Friday, September 24, 2021

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."  

September 24, 2021 in Cognitive Impairment, Crimes, Dementia/Alzheimer’s, Federal Cases, Federal Statutes/Regulations | Permalink | Comments (0)

DOJ Elder Justice Initiative Fall Webinars

DOJ's Elder Justice Initiative has announced its fall webinar series.  

Thursday September 30, 2021 2-3 p.m.,  INNOVATIONS IN GUARDIANSHIP: MAXIMIZING AUTONOMY AND ENSURING ACCOUNTABILITY.

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.

To register, click here

Thursday October 21, 2021 2-3 p.m., IMPLEMENTING ELDER ABUSE RESTRAINING ORDERS

With the growing criminalization of elder abuse, greater attention has focused on elder abuse restraining orders, which are commonly used in the domestic violence context. Approximately sixteen states have an elder abuse restraining order statute, including California, with an additional three states having a financial exploitation only restraining order statute. Learn how one county-level adult protective services program in California implemented their restraining order statute. Overcoming some initial challenges, the presenters will share their lessons learned.

To register, click here.

Thursday November 18, 2-3 p.m., IDENTIFYING AND PROSECUTING POWER OF ATTORNEY ABUSE

Financial powers of attorney are legal tools commonly used to plan for the possibility that an adult may need help with financial decision-making in the future, but they can be used to steal money and property. Presenters will discuss common scenarios and recent prosecutions.

To register, click here.

September 24, 2021 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 14, 2021

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!

September 14, 2021 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Property Management, Science | Permalink

Thursday, September 9, 2021

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.  

September 9, 2021 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, June 8, 2021

Webinar on Resuming SNF Visitation & Spotting Trauma

Register now for this  June 18 (3 eastern) webinar, NORC Webinar: Resuming In-Person Visits During COVID-19: Tips for Identifying Trauma, Potential Abuse, and Supporting Residents

In recognition of World Elder Abuse Awareness Day (WEAAD) join us to learn how to identify and respond to signs of trauma and potential abuse or neglect and support residents as Ombudsman programs resume in-person visits during the COVID-19 pandemic.

Dr. Laura Mosqueda, a national and international expert on elder abuse and neglect, will provide tips for Ombudsman programs conducting in-person visits, such as signs of trauma in response to isolation and loss during the pandemic and potential signs of abuse and neglect. She will also share recommendations for supporting residents and available resources. As an accomplished physician and researcher, Dr. Mosqueda has testified in front of Congress and has been invited to the White House several times to discuss elder justice initiatives. She has taken the lead on landmark studies to identify forensic markers of abuse and neglect and serves as a volunteer representative for the California Long-Term Care Ombudsman program.

Attendees will also hear from two Ombudsman program representatives as they share their experience resuming in-person visits and highlight what they observed upon reentry, how they supported residents, tips for visits, lessons learned, and successful practices.

Click here to register.

June 8, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)