Friday, October 22, 2021

More Resources on COVID Scams

Following up on my October 5 post on the APS TARC brief on COVID scams, the FTC is offering consumer info on avoiding COVID Scams.   The post offers extensive resources designed to provide accurate information to consumers on a variety of topics, including avoiding various scams, vaccinations, treatment claims,  privacy/online security, up to date info on scams, government resources, and more. I thought the section on avoiding scams to be helpful:

AVOID CORONAVIRUS SCAMS

  • COVID-19 vaccines are free. If anyone charges you for help signing up or the shot itself, it’s a scam.
  • You can’t buy the COVID-19 vaccine anywhere. It’s only available at federal- and state-approved locations.
  • Always talk with your doctor or healthcare professional before you try any product claiming to treat, prevent, or cure COVID-19.
  • Don’t post your vaccination card to your social media account. Someone could use the information for identity theft.
  • Right now, there are no official plans to create a national vaccine verification app or certificate or passport.
  • If someone asks you for personal information or money to get a national vaccine certificate or passport, that’s a scam.
  • Contact your state government(link is external) about its vaccine verification plans and requirements.
  • Check with airlines, cruise lines, and event venues about their vaccine verification or negative testing requirements.
  • When you’re looking for pandemic-related help, start with sites like coronavirus.gov and usa.gov/coronavirus.

October 22, 2021 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care | 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)

Friday, September 24, 2021

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

Monday, September 13, 2021

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.

September 13, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, Webinars | Permalink

Sunday, September 12, 2021

Florida's Guardianship Improvement Task Force

The next public hearing of Florida's Guardianship Improvement Task Force is scheduled for September 14, 2021 (tomorrow) at noon eastern. According to the emailed announcement, "[a] live stream of the meeting can be accessed here beginning at 12:00 p.m., EDT, on September 14The meeting agenda is being finalized and will be available on the Task Force website once completed."  More info about tomorrow's meeting should be available here.

Video of the five prior meetings, as well as supporting materials, are available on the website as well.

According to the website,

The Guardianship Improvement Task Force was formed with the mission of studying the current status of Guardianships in Florida, with the goal of making recommendations to improve the protection of wards throughout the state.

To accomplish this goal, the Task Force will hear from many stakeholders and study current vulnerabilities. After careful consideration, recommendations will be made to improve the protection and best interests of wards. Some recommendations may be directed for action by the various stakeholders, but the anticipation is that most will be offered as positive legislative recommendations.

The Task Force is being sponsored and staffed by the Florida Court Clerks & Comptrollers association.

September 12, 2021 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Statutes/Regulations, Web/Tech | Permalink

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.  

September 12, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Health Care/Long Term Care, Science | Permalink | Comments (0)

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)

Monday, September 6, 2021

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.  

September 6, 2021 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Medicaid, State Cases | Permalink | Comments (0)

Thursday, September 2, 2021

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.

September 2, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Film, Health Care/Long Term Care, State Cases | Permalink | Comments (1)

Tuesday, August 31, 2021

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

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

Here's a  description of the program:

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

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

 

 

August 31, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Tuesday, August 17, 2021

Register Now: Webinar on Guardianship Rights in the Era of Britney Spears

Register now for a free webinar next Monday, August 23, at 3 eastern, #FreeBritney: Transforming and Reforming Conservatorship and Guardianship.

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

Panelists include:
- Jonathan Martinis, Senior Director for Law and Policy at The Burton Blatt Institute at Syracuse University
- Zoe Brennan-Krohn, Staff Attorney, Disability Rights Program, American Civil Liberties Union, San Francisco
- Jasmine Harris, Professor of Law, University of Pennsylvania Carey School of Law
- Hon. Lauren S. Holland – Judge, Lane County Circuit Court
- Charles Sabatino (Moderator) – Director, ABA Commission on Law and Aging

To register, click here.

August 17, 2021 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Wednesday, July 28, 2021

Reminder! Here is Program for Upcoming Aging, Health, Equity & the Law Conference at Touro

Here is a link to the full schedule of speakers and topics for the virtual conference on "Aging, Health, Equity and the Law" hosted by Touro Law College on Monday, September 13, 2021.  The program runs from noon to 6:15 and registration is free.  Highlights include:

  • 12:20 Keynote Address 

    Nina A. Kohn, the David M. Levy Professor of Law and Faculty Director of Online Education at Syracuse  Law, and the Distinguished Scholar in Elder Law for the Solomon Center   for Health Law & Policy at Yale Law School.

  • Afternoon Tracks on Different Topics, including (you will have other great options too, so I encourage you to look at the full schedule linked above!):  

        1:00 "Property Law for the Ages," by University of Chicago Law Professor Lior Strahilevitz 

        1:30 "Allocating Scarce Medical Resources During a Public Health Crisis:  Should Age Matter?" by Houston Law Center Professor Jessica Mantel

        2:00 "Anti-Racism in Nursing Homes," by Elizabeth Chen, Acting Assistant Professor, NYU Law

        3:00 "Incorporating Cultural Sensitivity in Elder Law Courses", by Richard Kaplan, University of Illinois Law

        4:00 "End of Life, Elder Abuse, and Guardianship: An Exploration of NY's  Surrogate Decision-making Framework," by Deirdre Lok and Tristan Sullivan, Counsel at the Weinburg  Center for Elder Justice

Registration (Free!)  is here, and New York CLE credits are available.  

July 28, 2021 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Programs/CLEs, Webinars | Permalink | Comments (0)

Wednesday, July 21, 2021

Is Shared Decision-Making A Better Route for Effective Communication?

Elizabeth Moran, a relatively new staff attorney for the ABA's Commission on Law and Aging, has an interesting article in the latest issue of Bifocal, Vol. 42, Issue 6 (July-August 2021).  Moran outlines several key recommendations made by the National Guardianship Network during their May 2021 national Summit.  She points to two of the 22 recommendations that bear on "effective communication" for persons with disabilities, especially when involved in court proceedings that may affect any determination of "legal capacity."  

Recommendation 1.2 advocates for courts and state authorities "must ensure that all judicial proceedings" that can impact a determination of an adult's legal capacity must provide "meaningful due process" which includes respect for the individual's "preferred communication accommodations."  

Recommendation 2.4 provides that federal and state authorities "should recognize that supported decision-making can be a reasonable accommodation under the Americans with Disabilities act of 1990, as amended, in supporting an individual in making their own decisions and retaining their right to do so."

Moran acknowledges there is weak understanding within some courts for how supported decision-making will work, even as she advocates strongly for its use.  She writes:

While there is growing awareness of “supported decision-making” (SDM), particularly as an alternative to guardianship, SDM does not have a universally accepted legal definition. It is, however, becoming a more commonly understood concept of integrated supports which honors an individual’s integrity of choice with the underlying principle that, with enough appropriate supports and services, nearly every individual has the capacity to make decisions. When people use SDM as a communication accommodation, they use family members, friends, professionals, and others they trust and who know them well to help them understand the situations and choices they face, but with the ultimate choice left to the adult. This eliminates a substitute decision-maker and maximizes autonomy for the individual who may need communication supports for speaking, reading, writing, or understanding in order to meaningfully participate. The need for this kind of support necessarily includes and can provide for meaningful participation in court services, programs and activities.

For more on this important topic, read Moran's full piece, "Something to Talk About: Supported Decision Making and Access to Justice for All."

July 21, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)

Monday, July 19, 2021

UVA Law Professor Naomi Cahn: Why Conservatorships Like the One Controlling Britney Spears Can Lead to Abuse

 Prolific writer Naomi Cahn, who in 2020 moved from George Washington to University of Virginia School of Law as a distinguished professor and director of UVA's Family Law Center, has a new commentary on the potential impact of the Britney Spears' litigation challenging her California-based conservatorship.  Professor Cahn observes at the outset:

Spears’ case is unusual: Conservatorships are typically not imposed on someone who doesn’t have severe cognitive impairments, and Spears has toured the world, released four albums and earned US$131 million, all while deemed legally unfit to manage her finances or her own body.

Despite the unique circumstances of Ms. Spears' circumstances, her case demonstrates the lack of national data tracking such "protective" proceedings.  Professor Cahn writes:

Broad powers and “anemic” oversight make conservatorships subject to multiple forms of abuse, ranging from the imposition of unnecessary restrictions on the individual to financial mismanagement. Nothing can be done if no one finds out about the abuse.

 

A 2010 U.S. government report identified hundreds of allegations of physical abuse, neglect and financial impropriety by conservators. Most of them related to financial exploitation, and that, in turn, often meant that the victim’s family was affected, losing not just expected inheritances but also contact with the person subject to the conservatorship.

 

A 2017 New Yorker article on abusive guardians highlighted the case of April Parks, who was sentenced to up to 40 years in prison for financial conduct related to numerous conservatorships she handled. She was also ordered to pay more than half a million dollars to her victims.

 

But beyond these anecdotes, no one even knows the magnitude of the problem. That’s because conservatorships are subject to state law, and each state handles the imposition of them as well as data collection differently. And a 2018 Senate report found that most states are unable to report accurate data on conservatorships.

Professor Cahn sees Britney Spears' case as generating a national outrage that was missing from earlier anecdotal indications of problems for older adults trapped in "protective" proceedings.  She concludes: 

Spears may soon find herself free of her conservatorship. Regardless, her situation has already put a spotlight on the potential for abuse – and it may lead to a better system for those who genuinely need the assistance.

July 19, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues | Permalink | Comments (0)

Sunday, July 11, 2021

Analyzing Britney Spears' Conservatorship: How Should Courts Respond to Allegations of a Toxic Guardianship?

This summer, J. Collin Fulton, a rising 2L student at Dickinson Law, with a prelaw background in journalism, has been doing a fantastic job while working on projects with me.  He put together this very thoughtful overview of how Britney Spears' concerns, arising in the context of the California-based proceeding, may be relevant to the larger analysis of guardianships and conservatorships across the nation.  

Joshua Collin Fulton 2021From J. Collin Fulton:

In the areas of guardianship and conservatorship law, perhaps no recent case has captured the attention of the American public as thoroughly as the conservatorship of Britney Spears. The Pop singer’s conservatorship was established in California in 2008 and has become one of the best-known examples of how, under U.S. law, a person can have the management of both their personal life and financial affairs placed under the control of a court-appointed guardian/conservator, typically as a result of mental or physical conditions or advanced age.

While a legion of Ms. Spears’ fans has routinely called into question both the necessity and nature of the singer’s conservatorship, it was the release of the New York Times' 2019 documentary “Framing Britney Spears” which brought the details of Ms. Spears conservatorship to the attention of the broader public. I personally became aware following the Times’ publication on June 22nd of an article detailing how Ms. Spears herself feels about the conservatorship. Based on court records acquired by the NYTimes, the article details both Ms. Spears opposition to the continuance of her conservatorship in its present form as well as Ms. Spears claims concerning some of the effects the conservatorship has had on her life. Based on court documents going back to 2014, the NYTimes article reports that:

  • Spears “feels the conservatorship has become an oppressive and controlling tool against her.”
  • Spears has informed the court that, as a result of the conservatorship, she felt compelled to perform against her will and compelled to stay at a mental health facility against her will.
  • The conservatorship restricted a broad range of Ms. Spears decision making, ranging from who she was allowed to date to the manner in which she could decorate her home.

Ms. Spears’s June 23 public testimony further cast the conservatorship in a negative light. In the testimony, the singer claimed that, against her will, she was forced to take mood-altering drugs and forced onto contraception. Ms. Spears again called for her conservatorship to be ended and generally for the laws surrounding conservatorships to be changed. This call has been echoed by numerous other singers in support of Ms. Spears, including Justin Timberlake, Halsey, Brandy, and Mariah Carrey, as reported by the BBC.

Given what Ms. Spears claims has transpired as a result of her conservatorship and the public support she has received, I became deeply curious about how a conservatorship can actually be terminated. Given the complexity of guardianship/conservatorship laws, this is a question without a simple answer.

First, state laws vary significantly regarding who, how, and why a person can be placed under a guardianship/conservatorship. As Ms. Spears’s case takes place in California, I focus there.

There are two types of conservatorships under California law: Lanterman-Petris-Short (LPS) and Probate conservatorships, the latter of which is exemplified by Ms. Spears’s situation.

Such conservatorships are typically permanent affairs in California; however, they can be terminated in the following ways:

  • The conservatorship ends due to the death of the conservatee.
  • A judge may end the conservatorship upon petition to do so resulting from the conservatee regaining the ability to manage their own affairs (The argument Ms. Spears appears to be currently making).
  • A conservatorship of the estate can be ended if the conservatee ceases to possess any assets to protect.

Learning this raised a new question for me: why would a court allow a conservatorship such as Ms. Spears’s to continue given her allegations? I believe the answer to this question lies in the purpose of guardianship/conservatorship laws.

This purpose is perhaps best exemplified in the California “Handbook for Conservators,” which the state mandates for conservator cases. The Handbook has a clear message for every new conservator: “You have been appointed conservator because someone – your parent, spouse, child, or other relative or friend – needs help, and you are willing to lend a hand.” This simple message, in my opinion, captures the thought behind guardianship and conservatorship laws. There are, sadly, situations in which a person is unable to manage their affairs. Guardianships and conservatorships allow for a legal redress to such situations, enabling courts to appoint a trusted individual to provide assistance in such circumstances.

The California Handbook also highlights another important fact central to the functionality of conservatorships: “The position of conservator is one of great trust and responsibility. The court and conservatee are trusting you to follow the law and to act in the conservatee’s best interests.” Given the incredible responsibilities assumed by a guardian/conservator, it is indeed imperative that guardians/conservators execute their duties with the utmost understanding and respect for the individual's own values and goals, while also complying with the legal obligation to make decisions in the best interest of the individual they have been appointed to protect.

With the purpose of guardianships/conservatorships now understood, I turn back to Ms. Spears and the question of why, given her allegations, her conservatorship still remains. The answer is, simply, that legal process such as this take time.

Just as a court needed to consider a multitude of factors in determining that Ms. Spears should become a conservatee, the court must now perform proper inquiries into the allegations that Ms. Spears has raised and then determine an appropriate response to take based on the validity of these allegations. This is true not only for Ms. Spears, but for any person in a guardianship/conservatorship situation. Guardianships/conservatorships are serious affairs, ones in which a person’s ability to control their own lives have been taken from them and handed to another individual, hopefully one who is trustworthy and will act in their best interest. Should doubts emerge about the actions of a guardian/conservator, or indeed the necessity of an established guardianship/conservatorship itself, investigating the situation thoroughly is paramount to the integrity of not only the guardianship/conservatorship in question but also the legal system of guardianships/conservatorships at large.

Mr. Fulton concludes:  I thus believe that while a quick response from the court may satiate the immediate public outcry for change, a proper inquiry which establishes the truth and, in turn, enables the court to act based on the facts will not only improve Ms. Spears' situation but enhance public knowledge on the current state of guardianship/conservatorship laws in the United States.

July 11, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, June 30, 2021

Early Recommendation: Read "The Problem of Alzheimer's" by Dr. Jason Karlawish


The Problem of Alzheimer's A number of years ago, I had an email correspondence going with Dr. Jason Karlawish, Professor of Medicine, Medical Ethics and Health Policy, and Neurology at the University of Pennsylvania.  He was writing and speaking in intelligent, understandable ways about complex issues in degenerative neurocognitive disorders.  

My sister brought him back to my attention, as she had just heard Brené Brown's podcast interview with Dr. Karlawish.  Dr. Karlawish recently published an important book on The Problem of Alzheimer's.  I immediately ordered the book and I'm still reading, but I can tell this is -- and should be -- an important resource for anyone trying to understand or explain the Alzheimer's or other progressive impairments in cognition.  Frankly, that means all of us.  He is taking on an essential question:  "What's a good life when you're losing your ability to determine that life for yourself?"  The subtitle of the book helps explain the scope:  "How science, culture, and politics turned a rare disease into a crisis and what we can do about it."

I'm sure I'll write more hear about this book as I plunge ever deeper into the clear prose, organized in logical chunks, where I'm finding "gold" embedded on every page.  It is not a soothing read, but that is exactly why it is so important.

June 30, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

Thursday, June 17, 2021

New Elder Justice Resource Guide

The New York courts have released a new Elder Justice Resource Guide, "the result of collaboration between The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and the New York State Unified Court System’s Division of Policy and Planning, and ... provide[s] a list of resources, information and support for New York’s judges, court personnel, and other legal professionals."

The 136 page guide is available online or as a pdf, and covers various topics. "The Elder Justice Resource Guide includes information about elder abuse, accessible courtrooms for older adults, capacity and confusion, effective communication, and available resources for older adults experiencing abuse. The Guide also includes a comprehensive directory of national, state, and local services available to older adults."  (I particularly was interested in pages 12, 16-18 where Stetson's own Eleazer Courtroom is mentioned!)

June 17, 2021 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Other, State Cases | 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)

Thursday, May 20, 2021

Colorado: "Former Police Officers" Facing Criminal Charges For Conduct in Arrest of Woman with Dementia

On May 19, 2021,  the District Attorney's Office covering Loveland Colorado announced criminal charges against two officers who had already been removed from the force after details became public about their June 2020 arrest of a 73 year-old woman with dementia.  The primary arresting officer was charged with second degree assault causing bodily injury, attempt to influence a public servant (both being felony charges) and official misconduct, a misdemeanor, while a second officer who arrived midstream, was charged with misdemeanors, of "failing to intervene" in a case of excessive force, failing to report the use of force, and official misconduct, according to records from the DA's office.  

More details here:

 New York Times:  Former Police Officers Charged Over Arrest of Woman with Dementia

The Coloradan:  Arrest Documents - Former Loveland Officer Downplayed Force in Report on Karen Garner

 

May 20, 2021 in Cognitive Impairment, Crimes, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)