Wednesday, November 14, 2018

Stan Lee has died

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

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

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

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

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

Tuesday, November 13, 2018

Famous Faces of Dementia

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

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

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

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

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

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

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

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

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

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

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

Sunday, November 4, 2018

10 Commandments of Capacity

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

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

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

The article goes on to offer Ten Commandments:

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

 

 

 

 

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

Wednesday, October 31, 2018

Dementia and Firearms

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

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

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

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

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

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

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

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

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

 

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

Sunday, October 28, 2018

Good Life in Later Years

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

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

Good stuff!

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

Tuesday, October 23, 2018

Justice Sandra Day O'Connor's Courage

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

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

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

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

Sunday, October 14, 2018

Fictional Times in Dementia Care

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

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

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

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

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

Wednesday, October 10, 2018

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

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

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

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

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

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

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

 

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

Monday, October 1, 2018

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

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

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

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

 

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

 

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

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

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

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

Sunday, September 30, 2018

Reminiscence Therapy and Adult Day Care

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

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

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

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

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

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

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

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

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

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

Thursday, September 27, 2018

Financial Caregivers Now Can Request Security Freezes

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

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

Rhode Island's Brown University Student Investigators Tackle Topic of Elder Abuse Prosecutions

Recommended reading!  The Rhode Island Providence Tribute published a series of in August and September 2018 that flow from a student journalism project at Brown University in Rhode Island.  The team of students conducted an investigation over the course of a year, looking for the outcome of elder abuse allegations in the state.  What they found were plenty of arrests but very few successful prosecutions.    

Over two semesters, four student reporters pulled hundreds of court files and police reports of people charged with elder abuse to explore the scope of the problem and the way law enforcement and prosecutors handle such cases. In addition, the reporters used computer data purchased from the Rhode Island judiciary to track every elder-abuse case prosecuted in Rhode Island’s District and Superior courts over the last 17 years.

 

The student project, sponsored by a new journalism nonprofit, The Community Tribune, was overseen by Tracy Breton, a Brown University journalism professor and Pulitzer Prize winner who worked for 40 years as an investigative and courts reporter for The Providence Journal.

 

As part of the year-long investigation, the students analyzed state court data to evaluate how effective Rhode Island has been at prosecuting individuals charged with elder abuse. This had never been done before — not even the state tracks the outcomes of its elder-abuse cases. The data, based on arrests made statewide by local and state police, was sorted and analyzed by a Brown University graduate who majored in computer science.

 

The investigation found that 87 percent of those charged with elder-abuse offenses in Rhode Island over the 17-year period did not go to prison for those crimes. Moreover, fewer than half of those charged were convicted of elder abuse. This left victims in danger and allowed their abusers to strike again and again.

The above excerpt is from the first article documenting the students' amazing  investigation. I definitely recommend reading the following articles.  Caution: there is a paywall that appears after you open some number of articles on the Providence Tribune website, so if you aren't in the position of being able to pay for all the articles, you may want to prioritize the order in which you "open" the individual parts.  

Part 1: Reported Attacks Are on the Rise, Yet Perpetrators Avoid Prison

Part 2:  Barriers to Prosecution Leave Victims at Risk

Part 3: Creating a Stronger Safety Net for Victims

Part 4:  Mother and Son Locked in a Cycle of Violence

Part 5:  Police Training is Crucial Part of Solution

Part 6: When a "Guardian" Becomes a Fiscal Predator

Part 7:  Gaming the Systems is Easy for Guardians

Part 8: Scammers Prey on Victims' Trust and Fear

Part 9: Exploitation Puts a High Price on Friendship

Part 6 is somewhat different, as it tracks the "successful" prosecution of a court-appointed guardian who pled "no contest" in 2015 to charges of embezzling money from an 80-year old elderly client.  The embezzlement scheme allegedly involved false claims for services and double-billing.  According to other news sources, the guardian, an attorney who was eventually disbarred in connection with her plea, was required to pay more than $130k in restitution and serve 30 months of home confinement in lieu of a "suspended" sentence of seven years in prison. 

September 27, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 25, 2018

Thinking about Capacity

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

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

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

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

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

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

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

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

 

  

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

Monday, September 10, 2018

Even in Paradise: An Accusation of Elder Exploitation

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

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

 

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

 

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

 

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

 

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

 

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

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

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

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

Tuesday, September 4, 2018

Podcast about Brooke Astor Case

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

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

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

 

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

Wednesday, August 29, 2018

Giving Caregivers (and Law Students!) an Opportunity to See Life through the Eyes of A Person with Dementia

Relias Learning developed an educational tool to promote empathy for individuals with dementia, in the form of a a video shot from the perspective of "Henry," a care facility resident. 

Originally intended to help in training professionals, in June 2018 Relias released a version to the general public free of any charges.  A second Virtual Reality version, is available for a modest price of $10.  There are lots of good points for class discussion in the free on-line version of a Day in the Life of Henry, available here.

August 29, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Ethical Issues, Health Care/Long Term Care, Web/Tech | Permalink | Comments (0)

Tuesday, August 28, 2018

When Family Members Disagree about Care Arrangements....

While courts are most often called upon to appoint guardians or conservators in the absence of an authorized agent, another way in which courts may be required to act is when family members disagree about the course of care under private arrangements.  High profile examples of how this can arise often involve celebrities.  The latest example seems to involve comedian Tim Conway, where his wife and daughter are reportedly at "odds over his medical treatment."  From People magazine's online site comes this sad report:  

The 84-year-old Carol Burnett Show star’s daughter Kelly is asking to be appointed conservator of her father and be in charge of his medical treatments, according to court documents obtained by PEOPLE and first reported by The Blast.

Kelly, 56, filed the documents in Los Angeles on Friday, claiming Conway’s wife Charlene is “planning to move him out of the excellent skilled nursing facility he is currently at” and place him in one that won’t give him access to “registered nurses at all times and his 24-hour caregiver and speech therapist (to help with swallowing).”

Charlene is Conway’s second wife. He was previously married to Kelly’s mother Mary Anne Dalton from 1961-78. (In addition to Kelly, they share daughter Jackie and sons Jaime, Tim Jr., Pat, Corey and Shawn.)

Kelly also states that Conway cannot “properly provide for his personal needs for physical health, food, and clothing” and is “almost entirely unresponsive.”

Second marriages, where the families did not blend well, often seem to be a factor, especially if money becomes an issue.   My thanks to my Dickinson Law colleague Laurel Terry for sharing this item for our Blog. 

August 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Monday, August 27, 2018

Micro-chipping Grandma?

The title is somewhat tongue in cheek (I use the phrase in my class to be provocative) but it was only a matter of time until the potential of a micro-chip for elders was becoming a reality. This firm already microchips employees. Could your ailing relative be next? in the Washington Post, explains that a firm that already microchips employees is looking to develop "a more sophisticated microchip that is powered by human body heat and includes GPS tracking capabilities and voice activation [and]... [they] acknowledge that the chips will offer a convenient way to track people — especially those suffering from Alzheimer’s and dementia."  The chip the company has in mind will do more than just track whereabouts, according to the article. It will have a medical component that will track the wearer's vitals and notify the wearer's doctor if something is amiss. These "medical microchips" have proponents as well as detractors as the article explains.

The article offers that only about half of the company's employees opted for the microchip, and there are other companies using the technology with humans. One expert thinks using microchips with humans is going to be a done-deal, but not for a few decades.  I'm all for the use of tech, but worry about privacy, informed consent and cyber security issues.  Although it requires a chip to be inserted into the body, is it any less invasive than cameras or technology monitoring devices such as those used in a medical cottage or a gps tracker in a cane or shoes? I still hold out hope for privacy....even though it may be eroding.

August 27, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Other, Web/Tech | Permalink | Comments (0)

Sunday, August 26, 2018

A Different Approach to Dementia in the Netherlands

The New York Times reported recently on some innovations in The Netherlands, in  Take a Look at These Unusual Strategies for Fighting Dementia. It opens describing a virtual bus ride "simulation that plays out several times a day on three video screens" and moves into explaining that this virtual bus trip "is part of an unorthodox approach to dementia treatment that doctors and caregivers across the Netherlands have been pioneering: harnessing the power of relaxation, childhood memories, sensory aids, soothing music, family structure and other tools to heal, calm and nurture the residents, rather than relying on the old prescription of bed rest, medication and, in some cases, physical restraints." Another recreates a trip to the beach, both of which can spur conversations about previous trips.

The Netherlands has a preference for paying for care in the home rather than in facilities.  I've previously blogged about one facility in The Netherlands (De Hogeweyk). In The Netherlands, "facilities, which are privately run but publicly funded, are generally reserved for people in an advanced state of the disease."  One component of the Dutch approach is the physical surroundings designed to create a certain era or location. Another is creating small households of residents.

The article is accompanied by a number of great photos of involved residents. I plan to ask my students to discuss whether the Dutch model would work here in the U.S. What do you think?

August 26, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, International | Permalink | Comments (0)

Friday, August 24, 2018

Sweetheart Swindles: What to Do When You Suspect An Aging Friend or Family Member is Vulnerable to the Con?

A number of years ago,  a friend of mine was riven with anxiety because his widowed father seemed to be under the sway of a woman who, in the eyes of the family and the man's long-time friends, was "bad news." His father had been a shrewd businessman, his son would lament, unable to understand his father's late-in-life willingness to casually hand cash to the woman.  This was before I had begun working in elder law, and I remember thinking that perhaps the father was just "in love," and I questioned whether it was right for the son to interfere.  Didn't the father have a right to be a fool in love? 

We all know that conmen and conwomen are out there, but I suspect we also tend to have faith in our individual abilities to avoid falling into their traps as we age. 

When it comes to watching others, perhaps we are amused by lighthearted movies that portray swindlers as relatively benign, with the "victim" just as likely to pull a reverse con as to be truly harmed.  For example, think of the 1998 movie Dirty Rotten Scoundrels (which as actually a remake of 1964 movie, Bedtime Story),  with two competing, debonaire charmers played by Michael Caine and Steve Martin and their mark, a woman of a certain age, who proved to be several steps ahead of them.  In movies we treat the deeds of many criminals as entertainment -- remember Good Fellas and The Sopranos

When we are reluctant to intervene, perhaps it is because we're conditioned to think optimistically about romance, even or especially as we grow older.  Or,  we're programmed to assume the individual is making a "foolish" but nonetheless coherent decision to continue involvement with the person who everyone else sees as "a problem."

These thoughts were running through my mind as I read an amazing, recent story in the New York Times, A New Wife, A Secret Past, and a Trail of Loss and Blood.   I won't spoil it for you here by trying to summarize it, because much of the power of the tale comes from reading the details slowly.

At the same time, the story does raise a question in my mind, one that I've confronted often in elder law, about whether the individual's vulnerability is due to a cognitive impairment.

Continue reading

August 24, 2018 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (1)