Elder Law Prof Blog

Pennsylvania Bar Associations Issue Joint Guidance re Flat Fee Billing by Attorneys

Recently Pennsylvania Bar Association and Philadelphia Bar Association legal ethics committees issued a Joint Formal Opinion addressing ethical considerations in the handling of several related forms of billing for services:  flat fee, earned upon receipt, and non-refundable fees. Elder Law attorneys use various forms of such billing. 

On the one hand, clients often want to know up front the full cost for services and thus like flat fee billing.  On the other hand there can be tensions about whether or when such fees are "earned."  The opinion stresses the need for clarity in the client-attorney relationship, so as to assure mutual understanding about when a fee is deemed earned, and to make sure clients are fully advised about the fee structure. With older clients -- and their family members -- it can be especially important to avoid assuming everyone understands mere "labels" for different fee arrangements.

In Joint Ethics Opinion No. 2022-300, the Committees conclude that under Pennsylvania Rules of Professional Conduct and with the guidance of prior opinions:

• Any fee not “earned upon receipt” is deemed an “advance” fee, which may only be deposited into the operating account if the client provides informed consent, confirmed in writing, in accordance with Rule 1.15(i); and,

 

• When a fee is deemed to be “earned upon receipt,” attorneys may deposit the fee into an operating account rather than a Rule 1.15 IOLTA account or other Trust account, provided that the attorney specifically states in the fee agreement that the fee is intended to be nonrefundable and earned upon receipt.

Hat tip to Rob Clofine, elder law attorney extraordinaire, for sharing this with Pennsylvania lawyers.  

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."

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

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

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

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

Red flags everywhere in these fact patterns.

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

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

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

 

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

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

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

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

Red flags everywhere in these fact patterns.

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

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

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

 

Filial Friday? Court Holds Son Liable for Attorneys Fees Incurred While Securing Medicaid Coverage for Father's NH Care

Pennsylvania courts use "filial" responsibility laws in, shall we say, creative ways, especially when they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents' nursing home care.  One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order  to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had transferred some $100k of her mother's funds to herself using a "valid" power of attorney, instead of paying the nursing home.

It probably doesn't make the court any happier if the defendant/child is also a lawyer.  

In the latest Pennsylvania decision decided by the Court of Common Pleas in Montgomery County,  Coates v. Salmon, No. 2018-16878, both the plaintiffs and the defendant are lawyers.  The trial court was asked to determine whether a son was personally liable for attorneys fees incurred when the son "engaged" another attorney, one experienced in Medicaid issues, regarding a penalty period assessed against his father.  The penalty made his father ineligible for 296 days in Medicaid funding for his nursing home care.  The lawyer was able to negotiate a reduced penalty period, with a successful argument that certain pre-admission transfers were not made in anticipation of applying for Medicaid.  The settlement reduced the dollar effect of the penalty by more than $68,000. 

Nonetheless, the son declined to pay the attorney his requested fee of $7,606, arguing there was no contract as the attorney had failed to comply with Pennsylvania Rule of Professional Responsibility 1.5(b) that requires "the basis or rate of the fee" to be "communicated to the client in writing, before or within a reasonable time after commencing the representation."  The lawyer-son seemed to be arguing, at least indirectly, that the only fee he'd "agreed" to pay was a $500 up-front "consultation" fee.  

The court agreed with the defendant-son on the contract issue, but granted the full sum of the requested fees as "reasonable" under a theory of quantum meruit.  And that's where Pennsylvania's filial support law came into play to support the court's decision on the son's liability:

Mr. Salmon [the defendant/son] contended, however, that any claim in quantum meruit could be asserted only against his Father, and not against Mr. Salmon personally. The argument was that Father was liable to the Nursing Home for any services not reimbursed by Medicaid and Father was therefore the sole beneficiary of the substantial reduction in the penalty.  It is true that to establish a claim in quantum meruit against Mr. Salmon, Plaintiffs [the Elder Law attorney and his firm] were required to show that he benefited from Mr. Coates's services. . . . Plaintiffs clearly met that requirement, however, because Mr. Salmon himself would have been liable to the Nursing Home for the $86,786 penalty if it had not been successfully diminished by Mr. Coates.  

 

The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . . .

 

This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment. . . . It is thus clear that without the reduction of the penalty to a relatively trivial sum, Mr. Salmon would have been liable for -- or, at the least, substantially at risk of liability for -- the amount of Nursing Home fees denied by Medicaid.  

 

Further, the imposition of liability on Mr. Salmon in quantum meruit is fully consistent with principles of equity. The evidence clearly showed that Mr. Salmon, in engaging Plaintiffs' services, understood his obligation to pay for those services. . . . And, most significantly, in Mr. Salmon's letter of May 6, 2016, responding to Plaintiffs' bill, he disputed the reasonableness of Mr. Coates's fees and the quality of his services, but he never suggested that Plaintiffs were billing the wrong person. . . . [I]t was compelling evidence that Mr. Salmon understood his responsibility to pay Plaintiffs' legal fees and that his later contention that only his Father was responsible was a post hoc excuse for his unwillingness to pay.

The detailed, well-written opinion dated June 23, 2021 is available at the link above, and the case is on appeal to Pennsylvania's intermediate court of appeals, the Superior Court.  In Pennsylvania, trial judges have the opportunity to write their full opinion, rather than just their final decision, after a party has appealed the ruling and after that party has identified all claims of errors.  In my experience, a detailed, well-written Pennsylvania trial court opinion has a good chance of being affirmed on appeal. For an additional perspective on this case, see the Elder Law Answer summary here.  

Loss of Empathy and How Such Changes Affect Caregiving Relationships (and Can Inadvertently Affect Law-Related Matters)

During the pandemic,  as our caregiving relationships have probably become more intense because of the physical restrictions on travel, socializing, eating out, etc., I've had time to observe and think more about "empathy."   For several years, even before Covid-19 changed social patterns, I've heard friends and family members who are serving as caregivers talk about frustrations they are experiencing with "their" older persons, not just because of increasing physical needs, but because of changes in personality.  While a loved one's confusion and memory problems are typically associated with Alzheimer's Disease and other neurocognitive impairments, I also notice how often the caregivers can "forgive" the problems associated with those domains, but are enormously impacted if their loved one no longer is "nice" or no longer seems to be interested in, or cares about others' moods or needs.  

Loss of empathy is a documented phenomenon in aging generally, and in neurocognitive impairments specifically.  At the same time, loss of empathy seems to be rather weakly studied, or perhaps, more accurately, rather weakly understood.  

Brief excerpts from a review of some recent literature on loss of empathy:

• "Early loss of empathy is one of the core symptoms of behavioral-variant frontotemporal dementia (bvFTD), which is often diagnosed when people are in their 50s.  In contrast, empathy remains relatively intact in people with Alzheimer's disease (AD).  People with bvFTD are often unaware of the impact of their behavior on others, causing strain in close relationships.  The [2016] study conducted by NeuRA researcher Dr Muireann Irish, found that both the ability to understand other people's emotions (cognitive empathy) and to share in other people's feelings (affective empathy) were decreased in people with bvFTD.  People diagnosed with Alzheimer's however, retained the capacity for affective empathy." (from a 2016 report by NeuRA, an independent, not-for-profit research institute based in Sydney, Australia).  
• "The question of how aging impacts empathy has important implications for public health because reduced empathy has been associated with greater loneliness, depression, and poorer relationship satisfaction. Socioemotional selectivity theory ... highlights the importance of emotional meaning for older adults, and this typically takes the form of spending time with close others. Thus, if older adults experience decreases in empathy, this could have a significant, negative impact on their well-being." (from Preliminary Conclusions: State of the Research on Empathy in Aging, in Janelle Beadle and Christine E. de la Vega's article on "Impact of Aging on Empathy: Review of Psychological and Neural Mechanisms" published 2019 in Front Psychiatry).

How do changes in empathy impact decision-making, including decisions about pre-death gifts and post-death bequests?  If differences in the ability to empathize with others are associated with a disease process, should that mean that any corresponding change in gifting could (or should) be legally impacted?  Is loss of empathy a component of reduced legal competency or legal capacity?  

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

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

From J. Collin Fulton:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As Covid-19 Eases, Is Germany Again Seeking "Filial Support" (Elternunterhalt) Payments from Children?

It has been a while since I've written a "Filial Friday" post.  After more than a year of no calls or requests for information about "Elternunterhalt" payments in Germany, in the last 45 days I've heard from three sets of American citizens who recently received requests for financial contributions to the care of an aging parent in Germany.  In each of the instances, the adult children had never heard of Germany's parental maintenance laws before receiving the demand.   

Since last writing about elternunterhalt on this Elder Law Prof Blog (see here and here), I've learned about some changes to the German laws.  

First,  Germany adopted a threshold annual income for a potentially obligated child of at least 100,000 Euros, effective for claims after January 1, 2020.

Second, it appears that Germany has also clarified that only the adult child's income is considered in determining the amount of the potential support obligation.  In the past, the German authorities would routinely ask for "all" income and asset information for the child and any spouse or partner.  

For more on this, see this article and another article, from Germany, describing these changes as "reforms."  Germany's renewed use of filial support laws began with a ruling by the Federal Court on June 23, 2002.  "The legal basis is mainly Section 1601 and 1602 Paragraph 1 BGB," according to a third article.  

While I've often seen "claim letters" submitted to adult children living in the U.S., I've never seen a formal administrative proceeding or court proceeding to enforce such a claim if not paid voluntarily. In some instances, I've seen German authorities agree to drop the claim, usually because there is strong evidence that the now needy-parent neglected or mistreated the child while the child was a minor.  I have also sometimes seen a voluntary settlement between the U.S. child and the German authorities.  But, have  any of our readers seen a litigated outcome in a cross-border claim?  Do we have any attorneys reading this blog with experience with cross-border claims between the U.S. and Germany?   

One Family's Caregiving Experience

Richard Kaplan, elite elder law professor and friend, sent me the link to this recent article from the Wall Street Journal, One Family’s Lessons Learned From a Decade of Caregiving.

As do many families, the spouse committed to caring for his spouse with dementia. 

The family learned much along their decade-long caregiving journey, about setting up trusts, getting help in the home and respecting each other’s decisions. They think about a few things they would have done differently. And they found that caregiving, while relentless and heartbreaking at times, can also be rewarding.

Being a family caregiver is one of the most difficult jobs and one that nearly everyone will have at some point. An estimated 42 million people in the U.S. provide unpaid care to those 50 and older, a 14% increase since 2015, according to the Caregiving in the U.S. 2020 report by the National Alliance for Caregiving and AARP.

Each family is different, and what works for one family may not work for another, says  ... [the] chief executive of the National Alliance for Caregiving. Family members don’t always agree about when to call in hospice or sell a house, but it’s important to be supportive, she says. “The hardest thing to say is, ‘It’s not the choice I would make, but I want to honor their choice.’ ”

The story is heartfelt, and compelling.  The caregiver spouse offers this advice as to what changes he would have made.

He would have gone to an elder-law attorney earlier to make sure their assets were in a trust that would better protect them from having to be spent down to qualify, if needed, for Medicaid’s coverage of long-term care costs.

And he would have bought a single-story patio home within walking distance of their church and shopping center when [his spouse] suggested it 20 years ago. “It was what [she] wanted to do, but I wanted the yard. My own little domain. I wish I would have,” he says. “Here I am now with this big house, by myself. I’ll probably reach a point where I can’t take care of it.”

Knowing how hard it is to provide hands-on care, and not wanting to be a burden, he recently told his daughters, “Just put me in a nice place. You don’t have to do what I did for mom. You don’t have to take me into your house. I don’t want that.”

I'm assigning this reading to my students.  Thanks Professor Kaplan!

Unilateral Attempts to Change Scope of Services in Continuing Care and Life Plan Communities

With lockdowns being lifted in commercial arenas, I'm once again hearing from residents in Continuing Care Retirement Communities (CCRCs), also sometimes called Life Plan Communities, as well as other similar senior living settings.  The most frequently raised concern is "how can management of my community make major changes in services and amenities without asking us if we agree to a new contract?"  Sometimes I am able to recommend local legal counsel for the callers.

As a matter of theory, there's a traditional  "law-based" answer to this question, with state-specific tweaks.  And then there is what happens all too often in real life. 

Generally speaking, the law provides that unilateral attempts by one party to make significant changes in the parties' duties under a contract are not legally effective.  Here's one state Supreme Court's typical statement of the rule of law (written in the context of considering an employer's unilateral attempt to change an employment contract):

The cases dealing with employment contracts are merely part of the general rule that recognizes no difference between an express and an implied contract.... As a result, to effectively modify a contract, whether implied-in-fact or express, there must be: (1) an offer to modify the contract, (2) assent to or acceptance of that offer, and (3) consideration."

Demasse v. ITT Corp., 984 P.2d 1138, 1144 (Az. 1999).  As my law students know, "consideration" is a legal term of art, and generally means a "bargained for exchange." In the context of modification of existing agreements, this often involves new financial terms or mutual concessions in the parties' respective duties.

But, the real-life situation is that the party with the greater bargaining power simply ignores the bargaining process altogether. In employment contexts, that's the employer.  They treat their notice of major changes as "the new agreement" simply because no one objected.  That's not how the rule of law is supposed to work, but it does, all too often.  Indeed, I will confess that the very reason I started teaching Contract law was my growing familiarity with disputes in senior living scenarios that made me wonder if there was something about contract law I'd missed back in my own days as a law student.  There wasn't (although the full explanation would require a law review article) -- but the world keeps spinning along with the more powerful party in many commercial contexts able to avoid the contract because they are "in charge."  

Residents don't, however, have to put up with this.  Resident groups in individual CCRCs and those living in states where there are regional organizations have learned to flex their considerable muscle, both in negotiations with management and with state regulators or legislators.  I'm also hearing from more attorneys who are representing residents in negotiations, or when necessary, in arbitrations or on  lawsuits alleging breaches of contract and fiduciary duties.  Plus, I'm hearing from more states officials who are asking good questions.

It not a secret that I like CCRCs and I like them a lot.  I've visited CCRCs throughout the U.S. and they tend to be vital examples of senior living, offering community engagement, social networks, friendly-settings, caring service providers, and the reassurance of assistance if needed.  Many forms of senior living options are struggling with the impact of the pandemic, with enhanced pressures on facilities to balance their budgets. This is probably triggering a new upswing in attempts to make unilateral changes.  

I have worried, long before the pandemic, that an episodic  history of paternalistic or peremptory changes by management in CCRCs can undermine public confidence in this format as a viable alternative for seniors.  CCRCs have their highest value for consumers when residents are making the transition before becoming too frail to appreciated the amenities and services.  New residents may be unlikely to  "invest" in CCRCs if they lack confidence that promised services will be available when needed.  

Has Covid-19 Made Estate Planners (and, therefore, courses on estate planning) "Popular"?

I've had the same conversation lately with a number of lawyers working in estate planning or estate administration.
 Today, while walking back from lunch downtown on an especially nice spring day in Carlisle, an attorney, a former Dickinson Law graduate, saw me and called out -- "Do you know any recent graduates looking for a job in estate planning?"  That's probably the 5th time I've been asked that question just in the last month.  

On the practical side, I'm hearing that the Covid-19 experience has made younger adults more realistic about the need for sound estate planning documents.  On a sadder note, especially in Pennsylvania counties hit hard by the virus, lawyers and their staffs are reporting being overwhelmed with the number of estate administrations needed, especially for medium-size estates, including those with assets but no written plan.  

 

Caregivers React to Loveland Colorado Police Treatment of Aging "Shoplifter"

I've had several recent opportunities to talk with individuals serving as primary caregivers for family members who have varying stages and types of neurocognitive disorders, including but not limited to age-associated dementia.  One common concern in these conversations has been "that could have been my family member."

They are referring to news reports and body-cam videos of two officers in Loveland, Colorado in June 2020, as they apprehended, handcuffed, and took down "in a controlled manner" (the officers' description) a disoriented 72-year old woman. The officers were intent on arresting the woman following a report of her alleged "shoplifting" attempt of $14 dollars' worth of items at a local Walmart.   

According to the federal civil rights suit filed on April 16, 2021, the actions of the police officers fractured Karen Garner's left arm, dislocated her shoulder, and terrified her.  She was left for hours, crying and begging to go home while handcuffed in a booking cell, with no medical assistance offered or provided.  One booking room video shows the officers laughing and commenting about the body-cam footage.

Such conversationa explained what many caregivers were thinking about when they learned what happened to the "frail little thing" (the officer's word), the 5 foot tall, 80 pound woman who had earlier been diagnosed with "mild" dementia:

• It could have been a lawyer's uncle, who has PTSD following return from tours of military duty and an IED injuty in Afghanistan;
• It could have been a colleague's father, who was diagnosed with FTLD causing him to lose inhibitions, sometimes involving confusing behavior in public;
• It could have been an older friend who recently needed help because she could not find her way through the "new" self-checkout system at the grocery store;
• It could have been a member of my family, as my sister related to me a story I had not heard before, about how our mother, distracted by a cell-phone call, walked out of a grocery store without paying for groceries and didn't realize that until after she had loaded them into her car;
• It "was" a man in his  60s with early onset dementia who wandered away from his home one night, only to be arrested for loitering and placed in a special containment area of the jail, where he was beaten to a pulp during the night by his cellmate (as I have written about before, here).

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ACTEC Journal Call for Papers

Pursuant to the request from the Editor of the ACTEC Law Journal.

 

Call For Papers: ACTEC Law Journal

Modernizing Trusts and Estates

The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:

As trusts and estates academics and practitioners look forward into the remainder of the 21^st century, we acknowledge the aspects of law and practice that are changing, that should change, and that should resist change.

A special issue of the ACTEC Law Journal will be devoted to a discussion of the topic of Modernizing Trusts and Estates and will be comprised of shorter articles (2,500-5,000 words).  The issue will focus on what matters are of most importance to the forward-looking trusts and estates professional.  Topics may include developments in tax law, adaptations in legal technology, racial justice and diversity, new or impending statutory reform, remote or electronic estate planning documents, the funeral and death industry, and other topics that demonstrate the way in which the trusts and estates landscape is shifting.

Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal with estimated word count to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at [email protected].  Please include “ACTEC Theme Volume” in the subject line of your e-mail.

Proposals are due by March 15, 2021 and authors will be notified whether their article has been selected for publication by April 1, 2021.  Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.

Final articles will be due no later than August 1, 2021, and earlier submissions are welcome. Selected articles will be published in the ACTEC Law Journal, Volume 47 Issue 1, with an anticipated publication date of December 2021.

Stan Lee: litigation over the last years of his life

I love the Marvel movies and always enjeoyed seeing the cameos of Stan Lee in the movies.  I'd heard stories about the last few years of his life.

The Last Days of Stan Lee: A heartbreaking tragedy about the (alleged) abuse of the Marvel Comics creator by those who swear they loved him opens with the telling of a video of Mr. Lee filmed at a Comic Con, followed a few days later by a story in another publication.  The article notes that almost 2 years after Mr. Lee's death, there are many unanswered questions and several cases pending in courts:

[A] half-dozen civil suits are pending and a criminal elder-abuse prosecution by the Los Angeles County District Attorney’s office remains mired in pretrial maneuverings. The courts have yet to shed light on many of the details and the veracity of the elder-abuse charges against several people. Elder-abuse cases are difficult to bring to trial, tough to litigate and hard to win. Was Stan Lee, like 1 in 10 Americans over age 60, a true victim of elder abuse, which can include physical violence, emotional torment, financial exploitation and willful deprivation? Plenty of evidence and testimony suggests that may be true.

The article details the decades of his career and his personal life. The article focuses on Mr. Lee's relationship with those close to him, including his daughter..  As the story wraps up, the writer tells us

THE LAWSUITS churn through the system. Delays give way to delays, and the accused sit mostly at home like the rest of us this year. As with so many elder-abuse cases, those involving the Lee estate will likely come down to “he said, she said.” Except, in this situation, there’s a three-ring circus of barkers and performers who may not have had Lee’s best interest at heart, in a charade that went on for years. Call it the long con, but “those types of relationships are much more difficult to pinpoint as being perpetrators,” said elder-abuse prosecutor Paul Greenwood. “I always say that the longer the victim and suspect have known each other, the more difficult it becomes to establish beyond a reasonable doubt that undue influence was exerted over that person, because sometimes loyalty is rewarded.”

In a less lawyerly explanation, the villain in this story is love. Abuse of the elderly routinely cloaks itself in love, which is, in many cases, returned by the victim. The perpetrators might even call love their motivation.

It will be a while before we know the full story (if ever). Stay tuned.

Dolly Parton-The Next Chapter of Her Life

Billboard published a recent feature on Dolly Parton. Dolly Parton Steers Her Empire Through the Pandemic—and Keeps It Growing! Now you may wonder why I'm blogging about Dolly Parton on the elderlawprof blog? Well, she's 74. But that's not why I thought this article was worth inclusion. The bulk of the article is about her life, her music portfolio, and her businesses.  Here's why:

Though there is an air of immortality to Parton, thanks to her immutable image and lyrics like “You’re never old unless you choose to be,” she and Nozell have spent the past few years preparing for a world without her. Unlike Prince or Aretha Franklin, who died without wills, Parton has worked to get her estate in order, and Nozell says that most decisions now are made with Parton’s legacy in mind. (Parton and Carl Dean, her husband of 54 years, have no children.) “I would not want to leave that mess to somebody else,” Parton says, before offering a little advice. “A word to all the other artists out there: If you haven’t made those provisions, do that. You don’t want to leave that mess to your family for people to have to fight over. You need to take care of that yourself, even if it’s a pain in the ass — and it is.”  

This is good advice for everyone-regardless of the size of their estates.  Take it from Ms. Parton-planning is important!

NYT: Boom(er?) Time for Planning where Death Triggers Next Events

The New York Times has an article that might be particularly useful for faculty members teaching Wills, Trusts & Estates or Elder Law courses in the Fall.  

From the article, titled "Boom Time for Death Planning:"

The coronavirus pandemic has drawn new buiness to startups that provide end-of-life services, from estate planning to a final tweet. . . . 

Before the pandemic, end-of-life start-ups — companies that help clients plan funerals, dispose of remains and process grief — had experienced steady to moderate growth. Their founders were mostly women who hoped a mix of technology, customization and fresh thinking could take on the fusty and predominantly male funeral and estate-planning industries.

Still, selling death to people in their 20s and 30s wasn’t easy. Cake’s team sometimes received emails from young adults, wondering if the site wasn’t a tad morbid. Since Covid-19, this has changed. Millennials are newly anxious about their mortality, increasingly comfortable talking about it and more likely to be grieving or know someone who is.

AALS Call for Papers/Presenters on Intersectionality, Aging and the Law

The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January.  The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."  

I like this definition of "intersectionality": 

The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage.  Example:  "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."

We need great presenters!  

From Naomi Cahn at George Washington Law:

We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics.  The conception of the program is broad, and we are exploring publication options.

If you are interested in participating, please send a 400-600 word description of what you'd like to discuss.  Submissions should be sent to Professor Naomi Cahn, [email protected], by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.  

AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times:  The Power of Words

 

Remote Notarization Expanding to Many States

Florida passed a remote notarization last legislative session that went into effect at the beginning of the year, with an electronic wills statute following. Recently we have seen a lot of states enacting emergency legislation or governors signing executive orders to authorize remote notarization. So many are stepping up, it's hard to keep track of which state has done what. The American College of Trusts & Estates Counsel (ACTEC) just released a chart, current as of April 8, 2020 that lists the various states authorizing this as well as state-specific details. The chart is available here. Check it out and bookmark it!

 

ACTEC Journal Call for Papers

ACTEC (American College of Trusts & Estate Counsel) is devoting a volume of its Journal to Elder Law!  Here's the info about the call for papers.

The American College of Trust and Estate Counsel announces a Call For Papers on the following topic:

With an aging generation of Boomers and increasing estate tax exemptions, the practice and study of trusts and estates may be driven less by tax planning and more by a host of other issues confronting an older population. Those issues may be broadly grouped under the term "Elder Law."

A special issue of the ACTEC Law Journal will be devoted to a discussion of the intersection of Trusts and Estates and Elder Law and will be comprised of brief articles (2,000 word maximum). The conception of Elder Law is broad and intended to encompass all matters of legal concern that a trusts and estates lawyer might address for an aging client – or a client who is concerned about aging. Suggested topics include retirement planning, financial planning and wealth management, guardianship, disability and medical care, end-of-life planning, incapacity, powers of attorney, health care proxies, nursing homes and long-term care planning, special needs trusts, Medicare, Medicaid, Social Security, elder abuse (physical or financial), age discrimination, family succession planning, grandparent visitation rights, and classic core trusts and estates topics like wills, trusts, intestacy, probate administration, and nonprobate transfers.

Procedure for proposals: Authors wishing to contribute to this special volume should send a brief proposal to Professor Alyssa A. DiRusso, Editor, ACTEC Law Journal, at [email protected]. Please include “ACTEC Elder Law” in the subject line of your e-mail.

Proposals are due by April 1, 2020. Early submissions are encouraged as proposals will be reviewed on a rolling basis. Given the brevity of each article, articles that delve into one or two topics in detail will normally be preferred over more general articles. We encourage submissions by authors from a variety of backgrounds, including those actively involved in fiduciary administration or the practice of law.

Final articles will be due by August 1, 2020 and will be published in the ACTEC Law Journal, Volume 46 Issue 1.

New Book on Estate Planning

Looking for that perfect gift for the Boomer in your life?  Check out this new book, just for Boomers.  Harry Margolis has published Get your Ducks in a Row: The Baby Boomers Guide to Estate Planning. The book is available for purchase on Amazon.

The website provides this summary

If  you’re over 55, you probably know you need an estate plan. What you might not know is how to create one. Questions about cost, confusion about options, and difficulty talking about subjects like disability and death can make the process of preparing for the future seem overwhelming. That’s probably why most people put it off—even though the results of doing nothing can sometimes be devastating.

What you need is a guide that explains the process clearly and comprehensively, in terms you can understand and actually use. Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning tells you everything you ever wanted (or perhaps never wanted) about estate planning.

Written by elder law and estate planning expert Attorney Harry S. Margolis, Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning takes you through the estate planning process step by step. Whether you’re currently creating a plan, getting ready to start, or looking for an explanation of documents you’ve already signed, this book will provide the information you need, including:

• Answers to the most common estate planning questions
• Common estate planning terms, demystified
• The Five (or Six or Seven) Essential Documents everyone over 55 needs (and how to fill them out)
• An overview of more complex estate planning scenarios
• Help deciding when it’s time to consult an attorney
• And more...

Featuring practical advice and easy-to-follow examples gleaned from the author’s 30-plus years of experience in elder law and estate planning, Get Your Ducks in a Row: The Baby Boomers Guide to Estate Planning will help you take control, make a plan, and ensure your family—and yourself—a secure and comfortable future.

The book is divided into 3 sections:  (1) "The Five or Six or Seven Essential Documents, (2) Special Situations in Estate Planning and (3) Creating a Plan.  Each section has a number of chapters addressing relevant topics. I particularly liked chapter 6, "'Bonus' essentials," which covers beneficiary designations, digital assets, bank and investment accounts, life insurance and more.  The conclusion notes that all of us need to have an estate plan, but many folks don't--for various reasons---, and there are limits, and risks, to folks doing their planning without an attorney's guidance. Harry closes the book with this: "[f]inally, it's time for baby boomers to plan. It can make all the differ3ence for your family. don't wait. Enjoy the process."

PS, In the interest of full disclosure, I've known Harry for a long time. He's a prolific writer in the field of elder law.