Monday, October 29, 2018

Law Students Attend Annual Meetings for LeadingAge and NaCCRA

Law students from Penn State's Dickinson Law attended sessions hosted by LeadingAge and National Continuing Care Residents Association (NaCCRA) on October 28 in Philadelphia.  It was my pleasure to share this experience with students.  I see these opportunities as a great way to think about the wider world of business and law opportunities, and to consider how law and aging can intersect.  

In the morning, we heard from A.V. Powell about best practices for actuarial evaluations  to  Dickinson Law Student Mark Lingousky and Parker Life CEO Roberto Muniz promote greater understanding of financial issues for continuing care and life plan communities across the country.  At lunch we met Parker Life's CEO Roberto Muñiz, shown here on the right with Dickinson Law student Mark Lingousky, and discussed Roberto's ongoing projects such as working to established coordinated care options not just in Parker's center of operations in New Jersey, but also in Roberto's family home in Puerto Rico.  

After lunch we attended a LeadingAge educational program on "Legal Perspectives on Provider Operational Issues," presented by four attorneys from around the country.  Afterwards the students commented that they were surprised by how many of the topics had come up in one of Dickinson Law's unique 1L courses, on Problem Solving and Lawyering Skills.  It is great to see such correspondence between real life and law school life.  Of particular interest was hearing how residential communities are coping with issues connected to legalization of marijuana, including medical marijuana and so-called recreational marijuana, both from the context of resident use and potential use by employees.  

On the drive home from Philadelphia, I had the chance to debrief with the students about what most interested them at the conferences.  They quickly said they appreciated the opportunity to talk with engaged seniors about what matters concerned them.  Indeed, after the attorneys leading the afternoon program took a quick poll at the outset to ask how many of the members of the audience were attorneys (outside or inside counsel), operational staff, or board members, one student leaned into me and said, "They forgot to ask how many people in the audience were residents or consumers of their services!"  

Music to our ears, right Jack Cumming?  

October 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management | Permalink | Comments (0)

Friday, October 26, 2018

Filial Friday: "Elternunterhalt" -- An Update on Germany's Approach to Filial Support Law

GermanyMy first close look at filial support law in Germany arose in 2015, when I met a German-born, naturalized U.S. citizen living in Pennsylvania who had received a series of demand letters from Germany authorities asking her to submit detailed financial information for the authorities to analyze in order to determine how much she would be compelled to pay towards care for her biological father in German.  Her father had become seriously ill and did not have inadequate financial resources of his own.  As I've come to learn, the name for Germany's applicable legal theory is elternunterhalt, which translates into English as "parental maintenance."   

Since 2015, I've heard from other adult children living in the U.S.,  but also in Canada and England, about additional cross-border claims originating in Germany.  They write in hopes of getting objective information and to share their own stories, which I appreciate. In some instances, such as the first case I saw in Pennsylvania, a statutory defense becomes relevant because of past "serious misconduct" on the part of  the indigent parent towards the child.  The misconduct has to be more than mere alienation or gaps in communication. Sometimes misconduct such as abuse or neglect is the very reason the child left Germany, searching for a safer place.  

Most of the adult children who reach out to me report they had never heard of elternunterhalt.  Their years of estrangement are often not just from the parent but from the country of their birth.  Even those who still have a relationship with the parent in Germany often learn of the potential support obligation only after their parent is admitted to a nursing home or other form of care.  They face unexpected demands for foreign payments, while they are often still looking to fund college for children or their own retirement needs.  

National German authorities began to mandate enforcement of elternunterhalt in 2010 in response to increasing public welfare costs for their "boomer" generation of aging citizens.  Enforcement seems to have been phased in slowly among the 16 states in the country.  I've read news stories from Germany about confusion and anger in entirely domestic cases.

A claim typically begins with letters from a social welfare agency in the area where the needy parent is living.  The first letters usually do not state the amount of any requested maintenance payment, but enclose forms that seek detailed, documented information about the "obligated child's" income and certain personal expenses or obligations (such as care for minor children). The authorities also seeks information about any marital property and for income for any spouse of "life partner." 

Whether or not the information is supplied, at some point in a wholly domestic German case the social welfare office may initiate a request for a specific amount of  back pay as well as current "maintenance." Such a request cannot be enforced unless the child either agrees to pay or a court of law decrees that payment must be made.  The latter requires a formal suit to be initiated by the agency and litigated in the family divisions of the German courts.  The amount of any compelled payment is determined by a host of factors, including the amount of the parent's pension, savings, and any long-term care insurance, and the child's own financial circumstances.

Cross border cases have been pursued within the EU with some reported results.  As for parental maintenance claims presented to U.S. children, enforceability is less clear.  According to some of the letters sent by German authorities, Germany takes the position that a German court ruling in a cross border elternunterhalt claim can be enforced in the United States under "international law."  The letters do not explain what legal authorities are the basis for such enforcement. 

The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance was approved by the European Union, thereby affecting Germany, in 2014.  The treaty is mostly directed to the mechanics of international child support claims and is built on past international agreements on child support; however the treaty also provides that the Convention shall apply to any contracting state that has declared that it will extend the application "in whole or in part" to "any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons."  See Article 2(3). 

Continue reading

October 26, 2018 in Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, International, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Wednesday, October 24, 2018

Sign of the Times: CLE on Long Term Care Planning for Blended (and not so blended) Families

A notice about an upcoming continuing legal education program struck me as an apt sign of the times in elder law planning.   The Pennsylvania Bar Institute explains:  

Many clients are members of "modern family" structures. Our experienced faculty — with different legal perspectives — will explore the issues and opportunities available when planning for the long term care needs of clients in blended and non-traditional families. At the intersection of family law and elder law, they will examine various techniques, including long term care planning for clients with children from previous marriages and planning for unmarried partners. 


Receive practical guidance on counseling clients
        • Representation and conflict issues
        • Information gathering tips


Examine issues at the intersection of family law and elder law
        • Pre and post nuptial agreements
        • Marriage
        • Divorce
        • Cohabitation agreements
        • Gifts to divorced or separated children, alimony & child support issues


Explore long term care planning tools and techniques
    • To marry or not to marry for long-term care
    • Use of irrevocable trusts
    • High assets/income: private pay, life insurance, and long term care insurance
    • Spousal refusal
    • Transfers by the community spouse after Medicaid eligibility
    • To gift or not to gift: single individual vs. community spouse

For more, see Long Term Care Planning for Blended and Non-traditional Families, scheduled for first airing on November 27, 2018.  

October 24, 2018 in Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Programs/CLEs, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, October 23, 2018

The Need for Fiduciary Service Organizations

In a perfect world, everyone will be able to handle all of their own affairs, right until the day they die.  In a perfect world, even if that was not possible (or even desirable), there is always some trustworthy family member or friend to step in to help.  

Alas, it isn't a perfect world.  For a number of years, when I was supervising an Elder Law Clinic, our clients sometimes needed the assistance of a professional agent or guardian, someone who was experienced in providing fiduciary management services for people of modest means, and who had a track record and references to demonstrate competence.  We also wanted to see their certificate of insurance or bonding.

Recently I was looking for a guest speaker for a Nonprofit Organization Law class and I reached out to a company in my address book.  I learned it had ceased doing business.  In contrast to the dramatic stories from locations such as New Mexico, where nonprofit entities failed to carryout their fiduciary duties, Neighborhood Services, based in Lancaster, Pennsylvania found it necessary to close their doors for 300 vulnerable clients because of gaps in charitable funding.

Some clients had behavioral health needs. Approximately 150 of the clients were incapacitated people living in nursing and personal care homes in a multiple county region.  New representatives were needed for all of them.  A 2017 news story explained:  

Founded in 1964, nonprofit Neighborhood Services fell over $400,000 in debt after losing most of its United Way funding a couple of years ago and failing to secure key federal grants, said Stanley, who joined the agency in October 2015 as its woes were mounting.

 

The agency, which never prioritized fund-raising, has lost several staff members in recent months and currently employs five.

 

Neighborhood Services’ most visible role has been serving as the representative payee for more than 150 clients with intellectual disabilities, mental illness or addiction issues. The agency received the clients’ monthly disability checks and prioritized the payment of their rent and other basic needs.

 

"I'll miss all the staff," said Nathan Wilson, 57, who relied on Neighborhood Services to manage his finances.  "Whenever I need extra, they always get it for me."  

This history is a reminder that more than good intentions are needed to run a successful nonprofit organization.   

October 23, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 18, 2018

Legislative Update on Guardianship Reform and Other Bills in Pennsylvania

The Pennsylvania Legislature did not reach either SB 884, involving major changes in adult guardianship laws, or HB 2291, that would have blocked state authority to investigate complaints about the scope of services provided in senior public housing or independent living units in continuing care retirement communities (CCRCs), before adjourning to permit legislators to return to their districts for the final push before the November 2018 elections.   It is unlikely that either bill will receive further consideration this session.  New legislation would need to be introduced in the next legislative session, for fresh consideration in 2019.

One bill that did pass both Houses on October 18 in the waning hours of the 2017-18 session is HB 2133, Printer's No. 3107 to establish a Kinship Caregiver Navigator Program within the PA Department of Human Services as "a resource for grandparents who are raising their grandchildren" outside of the formal child welfare system.  The online navigator program is to be created by an outside contractor.  The fiscal note attached to the bill projects an estimated cost of about $2.2 million, with about half of the funds coming from federal sources.  

October 18, 2018 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Programs/CLEs, Retirement, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 11, 2018

California Vets Sue for Right to Aid in Dying

Bloomberg Law News ran a recent story about litigation in California. California Veterans Sue for Right to Die in State Home reports on a suit recently filed concerned vets living in a state veterans home.

Terminally ill California veterans wishing to use the state’s assisted dying law must be evicted or leave the state veterans’ home, a lawsuit challenging a regulation prohibiting the use said.

California is among a handful of states that permit assisted suicide. The California Department of Veterans Affairs (CalVet) argues the regulation banning assisted suicide was necessary to avoid violating the 1997 federal Assisted Suicide Funding Restriction Act, the lawsuit said. Veterans contend the agency’s argument is unsupported by law or fact and, in fact, harms terminally ill residents.

The suit was filed the first week of October in trial court in Alameda County.  The plaintiffs include 2 veterans groups,  a vet from Vietnam, and a non-veteran spouse. Defendants include the California Department of Veterans Affairs and the California Veterans Board.

October 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, State Statutes/Regulations | Permalink

Wednesday, October 10, 2018

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

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

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

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

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

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

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

 

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

Friday, October 5, 2018

Dwindling Numbers in Traditional Skilled Care Facilities Have Implications for Other Forms of Senior Living

The New York Times tracks more demographic information about occupancy in skilled care facilities:  

For more than 40 years, Morningside Ministries operated a nursing home in San Antonio, caring for as many as 113 elderly residents. The facility, called Chandler Estate, added a small independent living building in the 1980s and an even smaller assisted living center in the 90s, all on the same four-acre campus.

 

The whole complex stands empty now. Like many skilled nursing facilities in recent years, Chandler Estate had seen its occupancy rate drop.

 

“Every year, it seemed a little worse,” said Patrick Crump, chief executive of the nonprofit organization, supported by several Protestant groups. “We were running at about 80 percent.”

 

Staff at the Chandler Estate took pride in its five-star rating on Medicare’s Nursing Home Compare website. But by the time the board of directors decided it had to close the property, only 80 of its beds were occupied, about 70 percent.

 

Revenue from independent and assisted living couldn’t compensate for the losses incurred by the nursing home.

As seniors elect to stay "at home" and as families struggle to make that happen, we are seeing ever evolving concepts in how to provide appropriate care and companionship.  For more read, In the Nursing Home, Empty Beds and Quiet Halls.  

October 5, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Medicaid | Permalink | Comments (0)

Thursday, October 4, 2018

Is a Power of Attorney a "Contract"?

I teach contract law and I teach elder law, and often those silos overlap.  But recently someone asked me whether a "power of attorney" was a contract.  Somehow I had not not considered this topic before.  My first reaction was "no, not usually," although certainly POAs have contract-like implications once the agent takes action using the POA as authority.  I tend to think of POAs and similar appointments of an agent as bound by rather distinct "fiduciary law" obligations, as well as the limitations of the language in the POA itself and any statutory law, rather than traditional contract law principles. But perhaps my first instinct is wrong.  One significance of categorization is when determining what statutes of limitation applies to any violation.  It turns out the issue usually arises in the context of liability for allegations of misuse of authority.       

What do you think? At least one court believes POAs are contracts, at least for purposes of applying principles of interpretation.  A Court of Appeals opinion notes, when deciding whether family-member agents had authority to "self-deal" when handling real estate transactions in the name of the principal, that "Because a power of attorney is a contract, we interpret its provision pursuant to the rules of contract interpretation. . . . "  See Noel v. Noel, 225 So. 3d 1114, 1117(Louisiana Ct. of Appeals, 2017).    

For additional perspectives see the discussion of the Alabama Supreme Court, including the dissent, in Smith v. Wachovia Bank, 33 So. 3d 1191, 1202 (Ala. 2009).  

 

 

October 4, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (3)

Wednesday, October 3, 2018

Why Did We Receive a "Presidential" Alert Text Today?

I try hard to avoid political issues on the Elder Law Prof Blog, even as I sometimes recognize that certain law and aging issues have political implications, such as funding for Social Security, Medicare or Medicaid.

But today, when I received a national "test" message via text on my cell phone, I was not happy that it was labeled a "Presidential Alert."  I think I would feel the same way no matter who is the current president, but certainly right now, I can see no good reason for this message to have any such label.  I then realized that I had only one option on receiving the message -- to hit "okay" or something similar to make it disappear.  Of course, that means that someone, somewhere, has a record of that response.  Plus, there was no way to "bar" such a message in the future.  

I'm not inclined to conspiratorial theories of any kind.  But, there isn't any way to easily register my disapproval of a system which appears calculated to tie the U.S. president into a system of nationwide notifications at a time of fraught political implications.  Forgive me for using this Blog to register my disapproval, but this is my only way to do so at this moment.   

For the record, I don't want any "Presidential" messages of any kind coming to my cell phone.  If there needs to be local, state, or even national emergency messages of some kind, identified with an appropriate emergency agency, that would, perhaps, be different.  But calling any such message a "Presidential Alert" is a step too far for me. 

I object.  

October 3, 2018 in Consumer Information, Current Affairs, Ethical Issues | Permalink | Comments (0)

Monday, October 1, 2018

Podcast: The Long-Distance (Elder) Con

The New Yorker has a podcast that offers another take on a topic that we often explore on this Blog: Why do older persons sometimes "fall" for an obvious con job, such as as offshore lotteries or stranded grandchild scams?  The wilder the facts, the greater the "obvious" risk, but that doesn't deter some "investors."  One daughter is determined to get to the bottom of her deceased father's tragic loss. of his entire life savings.  I recently heard the first of a two-part podcast called "The Long-Distance Con" (it aired for the first time 3 days ago) and found it pretty darn interesting.  Here's a summary of the first part:

On the day that Maggie Robinson Katz learned that her father had only a few days to live, she also found out that her wealthy family couldn’t pay his hospital bills: his fortune had disappeared. Katz didn’t learn how until several years later, when she began listening to a box of cassette tapes given to her by her stepmother.

 

The tapes record her father, Terry Robinson, speaking on the phone with a man named Jim Stuckey, a West Virginian based in Manila, about a kind of business proposition. Hidden in jungles and caves in the Philippines, Stuckey said, were huge caches of gold bullion, uncut U.S. currency, and Treasury bonds; if Robinson put up the money to pay the right people, Stuckey could get the treasures out.

 

It seemed absurd to people around Robinson, and the Treasury Department warns of scams that sound just like this.

 

But Robinson, a successful retired executive, fell for it hook, line, and sinker. His daughter Maggie struggles to understand why and how, talking with TheNew Yorker’s Maria Konnikova and others.

This is part one of a two-part series.  Here is the link to the first, 27 minute podcast.  

October 1, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, International | Permalink | Comments (0)

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

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

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

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

 

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

 

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

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

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

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

Friday, September 28, 2018

Aging, Law and Society CRN Call for Papers in Advance of 2019 Annual Meeting in D.C.

The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.

For this workshop, proposals for presentations should be submitted by October 22, 2018. 

This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.

The CRN encourages paper proposals on a broad range of issues related to law and aging.  For this event, organizers especially encourage proposals on the following topics:

  • The concept of dignity as it relates to aging
  • Interdisciplinary research on aging
  • Old age policy, and historical perspectives on old age policy
  • Sexual Intimacy in old age and the challenge of “consent” requirements
  • Compulsion in care provision
  • Disability perspectives on aging, and aging perspectives on disability
  • Feminist perspectives on aging
  • Approaches to elder law education

In addition to paper proposals, CRN also welcomes:

  • Volunteers to serve as panel discussants and as commentators on works-in-progress.
  • Ideas and proposals for themed panels, round-tables, or a session around a new book.

If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"  

September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)

Thursday, September 27, 2018

Good News/Bad News on Guardianship Reform Legislation in Pennsylvania

First the bad -- or at least frustrating -- news.  On Thursday, September 27, we received word that Senate Bill 884, the long-awaited legislation providing key reforms of guardianship laws in Pennsylvania, was now "dead" in the water and will not move forward this year.   Apparently one legislator raised strong objections to proposed amendments to SB 884, amendments influenced by recent high-profile reports of abuse by a so-called professional guardian who had been appointed by courts in multiple cases in eastern Pennsylvania. 

The objections reportedly focused on one portion of the bill that would have required both law guardians (typically family members) and professional guardians to undergo a criminal background check before being appointed to serve.  The amendment did not condition appointment on the absence of a criminal record, except where proposed "professional guardians" had been convicted of specific crimes.  For other crimes or for lay guardians, the record information was deemed important to permit all interested parties and the court to make informed decisions about who best to appoint.  

What is next?  Pennsylvanians will look to new leadership in the 2019-20 session in the hope for a new bill that resolves differences and that can make it through both houses.  In the meantime, the courts are already moving forward with procedural reforms, adopted in 2018 at the direction of the Pennsylvania Supreme Court.  

And that leads us to a more positive note about guardianship reform in Pennsylvania.  Pennsylvania Common Pleas Judge Lois Murphy testified this week during a Senate Judiciary Committee meeting about the Pennsylvania Courts' new Guardianship Tracking System (GTS).  It is now operational in 19 counties (out of 67 total counties) in Pennsylvania, including coming online in the major urban counties for Philadelphia and Pittsburgh.  Judge  Murphy reported that GTS is "already paying dividends," and she gave the example of a case in which the reporting system triggered a red flag for an estate worth more than $1 million, much higher than originally predicted, making appointment of different guardian more appropriate.   

Judge Murphy predicts that as the tracking system becomes operational statewide, it should generate valuable answers, such as how many persons are subject to guardianships at any point in time, how much in  assets are under management, what percentages of the pointed guardians are family members (as opposed to professionals), and what percentages of those served are over or under age 60.   The hope is that GTS will also permit coordination of information about appointed guardians in state courts with information in the federal system on those appointed as Social Security representative payees, thus, again, providing more comprehensive information about trustworthiness of such fiduciaries.  

You can see Judge Murphy's testimony, and hear her reasons for criminal background checks and appointment of counsel to represent alleged incapacitated persons, along with the views of retiring Senator Greenleaf and Senator Art Haywood, in the recording of the September 24 hearing recording below.   

Judge Murphy testifies from approximately the 35 minute mark to the 43 minute mark, and again from 1 hour 33, to one hour 44.  

Bottom line for the week -- and perhaps the session?  You can certainly grow old just waiting for guardianship reform in Pennsylvania. 

 

 

  

September 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0)

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

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

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

 

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

 

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

 

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

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

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

Part 2:  Barriers to Prosecution Leave Victims at Risk

Part 3: Creating a Stronger Safety Net for Victims

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

Part 5:  Police Training is Crucial Part of Solution

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

Part 7:  Gaming the Systems is Easy for Guardians

Part 8: Scammers Prey on Victims' Trust and Fear

Part 9: Exploitation Puts a High Price on Friendship

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

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

Wednesday, September 26, 2018

Latest News on Pennsylvania's Adult Guardianship Reform Legislation - SB 884 is still lingering in the Senate

I was hoping to be able to report by today, the last of a three-day working session for the Pennsylvania Senate, that Senate Bill 884 on adult guardianship law reforms had passed the state's Senate, allowing the bill to move on to the House of Representatives.  But no vote yet on the floor of the Senate. The next opportunity for movement is Monday, October 1. 

For more on the history of the bill presenting several key items of reform for Pennsylvania's Adult Guardianship Laws and process, see our posts from last week, here, here, and here, or a memo I prepared earlier last week, here.   

Will the Pennsylvania Legislature take action before the November elections?  Stay tuned!  

September 26, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 25, 2018

Call for Papers: Elder Law Review E-Journal Solicits for Special Issue on Relational Autonomy

The Elder Law Review is an independent refereed e-journal produced by  Western Sydney University.   The Review is multi-disciplinary, bringing together professionals working, researching and writing in the aged care area. It is designed to be of interest to academics, practitioners and those involved in the provision of aged care.

We received word via Nina Kohn at Syracuse Law and Guest Editor Margaret Hall of Thompson Rivers University in Canada about plans for a special volume of the Elder Law Review on the theme of  "Relational Autonomy, Vulnerability Theory, Older Adults and the Law: Making It Real."  Publication is planned for mid 2019.  

The topic was developed at a March 2018 workshop held at Macquarie University in Australia.  

Original, unpublished contributions are invited for any of the following sections of the Review:

  • the Refereed section containing scholarly articles exploring different aspects of relational autonomy and vulnerability theory in relation to older adults and the law. While we will consider articles of any length, we prefer them to be between 3000 and 8000 words.
  • the Comments section, which consists of contributions from government, lawyers and aged care representatives, commenting on issues which the contributor perceives to be of contemporary significance within elder law.
  • News and Current Issues – including legislative changes and case notes.
  • Elder Law in Practice which profiles legal practices, community projects, social justice initiatives and pro-bono schemes from all over the world that specifically target the legal needs of older people.

Submissions are due by March 1, 2019.  For more information, see Call for Submissions, here.  

September 25, 2018 in Current Affairs, Ethical Issues, Grant Deadlines/Awards, Programs/CLEs | Permalink | Comments (0)

Iowa Supreme Court Case Demonstrates Significance of "Vulnerable Person" Standards in Elder Abuse Cases

Protection laws may be predicated on proof that victims were unable to protect themselves because of a "mental or physical condition."  Or sometimes the laws define a right to protection as arising when the person is of a certain age and "because of that age" is unable to protect him- or herself. 

The Iowa Supreme Court explained Iowa's vulnerable person exploitation standard in a recent case arising from a request for an order protecting a 69 year-old woman from her son:

We find the following elements need to be proved by a person claiming elder abuse to qualify as a vulnerable elder as defined in  [Iowa Code] section 235.F.1(17): (1) The person must be sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition. Id. The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder as defined in section 235F.1(17). . . . 

 

The district court viewed the testimony and concluded Chapman's age alone made her a vulnerable elder.  In our de novo review, we give weight to the district court's finding and find Chapman's age made her unable to protect herself from elder abuse.  She gave all her assets to her children.  She was unemployed with a fixed income.  [Appellant son] demanded $35,000 from her to stay in the mobile home [she had originally owned].  At her age, she was unable to pay him.  She voice a concern that she was to old to handle the eviction notices [he] was giving her. 

 

In summary, [the son] took advantage of Chapman due to her age and financial condition.  The evidence supports a finding Chapman was a vulnerable elder.  The purpose of the elder abuse statute was to allow our elderly population to seek relief from actions such as Wilkinson's without the expense of a more costly and time consuming action that others argue are appropriate under the circumstances.  

For the full opinion, see In re Petition of Chapman, 890 N.W. 2d 853 (Iowa 2017). 

September 25, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thinking about Capacity

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

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

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

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

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

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

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

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

 

  

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

Monday, September 24, 2018

The "Invisible Work Force" of Family Caregivers for Older Adults

From The New York Times, a well-told tale from siblings who recently "joined the ranks of the 15 million or so unpaid and untrained family caregivers for older adults in this country," calling them the nation's invisible work force.  As one son admits:

The work takes its toll. These sons, daughters, husbands and wives are at increased risk of developing depression, as well as physical and financial difficulties, including loss of job productivity. Being sick and elderly in this country can be terrifying. Having a sick and elderly loved one is often a full-time job.

 

As the workload increased, we hired help, as much for ourselves as for our parents. But after some items were stolen, we realized we had to be more careful about whom we allowed into our parents’ home. Older adults in this country lose almost $3 billion a year to theft and financial fraud. Nearly every week my father instructed us to donate money to someone who had sent him a generic email appeal. It fell on us to keep our parents from being exploited.

 

With millions of elderly adults requiring assistance with daily living, physicians should make it routine practice to ask family members whether they can provide the requisite care. Many of these potential caregivers, ill or stressed themselves, simply cannot.

For the full article, read When Family Members Care for Aging Parents. 

My thanks to colleague Laurel Terry at Dickinson Law for sending the link to this article!

September 24, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing | Permalink | Comments (0)