Monday, September 27, 2021
Recently a friend noted with concern that she'd been advised that an elderly relative would be receiving "antibodies" in her assisted living community. The confusion was "if she has been fully vaccinated, and hasn't tested positive herself, why would she need "antibodies?" Turns out there were new incidences of COVID-19 in her wing of older adults, many of them with multiple risks factors, and the staff was being proactive. More than likely, what she was receiving was "monoclonal antibodies." The question arose before the question of authorization of "booster" shots had been addressed by the FDA.
As explained in this WebMD Health News article, titled Monoclonal Antibodies vs. Vaccines vs. COVID-19, from August 2021, families with loved ones in communal settings may want to discuss monoclonal antibodies with the health care team:
Can I help relatives in assisted living get it?
If you believe that a relative in a residential facility -- like a nursing home, assisted living facility, long-term care home, or prison -- has COVID-19 or has been exposed, the first thing you should do is have a conversation with the medical leadership at the facility.
[Michigan Department of Health and Human Services Division of EMS and Trauma Director, Dr. William Fales] has partnered Michigan-based paramedics with several nursing homes in the state to have monoclonal antibodies delivered to these facilities when there’s an outbreak. It’s also possible for long-term care pharmacies to get monoclonal antibodies to administer in-house. If the medical leadership doesn’t appear to be aware of the treatment, you can use the same websites to find the nearest infusion center and begin coordinating treatment with it.
It's a good idea, Fales says, to find out where monoclonal antibodies are offered in your area, and perhaps talk with your doctor or a high-risk loved one’s doctor about how to get them, to be prepared. The faster you can get the treatment, the more likely it will help.
Thursday, September 16, 2021
The U.S. Food and Drug Administration hearing on Friday, September 17, 2021 to address the question of approval for "booster" doses of Covid-19 vaccines is scheduled to be "open" to the public through online portals. The hearing begins at 8:30 a.m. Eastern time.
The FDA's website helpfully links to the submissions from the drug companies and other interested parties as well to the hearing portal. In contrast to The Lancet article published earlier this week which takes the position that a booster vaccine dose is not "currently" indicated for most members of the public, Pfizer and Moderna each submitted materials to the FDA this week in support of administering third shots beginning six months after an individual's second shot. Pfizer is recommending a full-strength dose for its booster shot, while Moderna is recommending a dose that is 1/3 the level of its original doses. It appears both companies are citing observational studies, clinical trials, and antibody tests in support of their recommendations, including studies in the U.S., Israel, and South Africa, and discuss histories of reactogenicity, adverse events, and risk/benefit assessments.
Here's the useful FDA vaccine hearing webpage and links: https://www.fda.gov/advisory-committees/advisory-committee-calendar/vaccines-and-related-biological-products-advisory-committee-september-17-2021-meeting-announcement#event-materials
Tuesday, September 14, 2021
- A perfect kickoff with opening remarks on the theme of the conference from Syracuse Law Professor Nina Kohn, who outlined the civil rights of older persons, reminding us of existing laws and the potential for legal reforms;
- A unique "property law" perspective on the importance of careful planning about ownership or rights of use, in order to maximize the safety and goals of the older person, provided by Professor Lior Strahilevitz from University of Chicago Law School;
- Several sessions formed the heart of the conference by taking on enormously difficult topics arising in the context of Covid-19 about access to health care, including what I found to be a fascinating perspective from Professor Barbara Pfeffer Billauer from her recent work in Israel. She started with an interesting introduction of three specific pandemic responses she's identified in her research. She then focused on how "Policy Pariah-itizing" has had a negative effect on health care for older adults, with examples from Israel, Italy, and China. I was also deeply impressed by the candid presentations of several direct care providers, including nursing care professionals Esperanza Sanchez and Nelda Godfrey, about the ethical issues and practical pressures they are experiencing;
- Illinois Law Professor Dick Kaplan offered timely perspectives on incorporating cultural sensitivity in Elder Law Courses. His slides had great context, drawing in part from an article he published about ten years ago at 40 Stetson Law Review 15;
- Real world examples about tough end-of-life decisions involving family members and/or formally appointed surrogates, with Deirdre Lock and Tristan Sullivan-Wilson from the Weinberg Center for Elder Justice leading breakout groups for discussions.
I know I'm failing to mention other great sessions (there were simultaneous tracks and I was playing a bit of leap-frog). But the good news is we can keep our eyes out for the Touro Law Review compilation of the articles from this conference, scheduled for Spring 2022 publication. I know it was a big lift to pull off the conference in the middle of the fall semester. Thank you!
September 14, 2021 in Advance Directives/End-of-Life, Books, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Property Management, Science | Permalink
Monday, September 6, 2021
Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court
In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."
In Hornibrook v. Richard, the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator. The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons. It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.
Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home. The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.
The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity." The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity.
Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale.
The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:
"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."
One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling. But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.
Friday, September 3, 2021
New York Times Magazine has an Ethicist Columnist and recently the topic was "My Stepdad Has Alzheimer's. Can My Mom Date Someone Else?"
The adult child who raises the topic explains that her mother was a long-standing, full-time caregiver for her husband, who's early-onset diagnosis of Alzheimer's had deepened to the point that he was transferred to a more appropriate, assisted-living setting. Lonely and missing companionship, the mother began dating another man. On the one hand, the ethicist was tackling the concern about the appropriateness of the couple "dating." The deeper concern, however, appeared to be that the man the mother was dating might not be a good choice, and potentially even an unsafe choice, and the family disapproved.
On the question of "dating" while still married to a spouse with dementia, the ethicist, Kwame Anthony Appiah (who teaches philosophy at NYU), makes the startling, but apt, observation about de facto widowhood:
Making sure that a spouse is cared for is one commitment that marriage entails and, having served as a full-time caregiver, your mother has clearly done so, at real personal sacrifice. But we should not want our spouses to abjure the companionship of others once we are no longer available to them. Indeed, nobody in your family has the right to expect this of her. The painful truth is that her status is ethically equivalent to that of a widow.
The comments posted after the article in response to the ethicist's discussion are also interesting, including what sprang to my mind, a recommendation of a sensitively-made movie directed by Sarah Polley, based on the author Alice Monroe's novel with the same title, Away from Her.
Tuesday, August 17, 2021
Register now for a free webinar next Monday, August 23, at 3 eastern, #FreeBritney: Transforming and Reforming Conservatorship and Guardianship.
Britney Spears’ conservatorship battle has shed light on the widespread problems and overuse of conservatorships/guardianships nationwide. Guardianships can be abusive and unnecessarily strip individuals of their civil rights to make their own decisions and use supports to live and direct their lives. Disability, aging, and civil rights advocates are calling for changes to reduce the overuse of guardianship and conservatorship, to strengthen recognition and use of less restrictive alternatives to guardianship like supported decision-making, and increase due process protections in guardianship proceedings and in the monitoring of guardianships. Our panel of experts will discuss the risks and harms of guardianship, its systemic flaws, and the promise of alternatives like supported decision-making. They will discuss reforms and changes that can address the problems that Britney Spears’ case has brought to light.
- Jonathan Martinis, Senior Director for Law and Policy at The Burton Blatt Institute at Syracuse University
- Zoe Brennan-Krohn, Staff Attorney, Disability Rights Program, American Civil Liberties Union, San Francisco
- Jasmine Harris, Professor of Law, University of Pennsylvania Carey School of Law
- Hon. Lauren S. Holland – Judge, Lane County Circuit Court
- Charles Sabatino (Moderator) – Director, ABA Commission on Law and Aging
To register, click here.
Monday, August 16, 2021
Elder Law attorney and friend Morris Klein sent me the link to this article, Some NHs Use POLST Inappropriately; Practice, Policy, Research Considerations Can Help. In discussing the importance of advance care planning, the authors note "[o]ne [step] involves the POLST (Physician Orders for Life Sustaining Treatment) paradigm. POLST is intended for persons who are at risk of a life-threatening clinical event due to a serious life-limited medical condition. However, according to the authors of an article in the August issue of JAMDA, some nursing homes (NHs) are using it in potentially inappropriate ways with patients who are ineligible because they are not at such risk. They also make recommendations for NHs to implement the appropriate use of POLST." The article, POLST Is More Than a Code Status Order Form: Suggestions for Appropriate POLST Use in Long-Term Care, can be found here. The abstract explains
POLST (Physician Orders for Life-Sustaining Treatment) is a medical order form used to document preferences about cardiopulmonary resuscitation (CPR), medical interventions such as hospitalization, care in the intensive care unit, and/or ventilation, as well as artificial nutrition. Programs based on the POLST paradigm are used in virtually every state under names that include POST (Physician Orders for Scope of Treatment), MOLST (Medical Orders for Life-Sustaining Treatment), and MOST (Medical Orders for Scope of Treatment), and these forms are used in the care of hundreds of thousands of geriatric patients every year. Although POLST is intended for persons who are at risk of a life-threatening clinical event due to a serious life-limiting medical condition, some nursing homes and residential care settings use POLST to document CPR preferences for all residents, resulting in potentially inappropriate use with patients who are ineligible because they are too healthy. This article focuses on reasons that POLST is used as a default code status order form, the risks associated with this practice, and recommendations for nursing homes to implement appropriate use of POLST.
The article in pdf is available here.
Thursday, July 29, 2021
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.
Wednesday, July 28, 2021
Here is a link to the full schedule of speakers and topics for the virtual conference on "Aging, Health, Equity and the Law" hosted by Touro Law College on Monday, September 13, 2021. The program runs from noon to 6:15 and registration is free. Highlights include:
- 12:20 Keynote Address
Nina A. Kohn, the David M. Levy Professor of Law and Faculty Director of Online Education at Syracuse Law, and the Distinguished Scholar in Elder Law for the Solomon Center for Health Law & Policy at Yale Law School.
- Afternoon Tracks on Different Topics, including (you will have other great options too, so I encourage you to look at the full schedule linked above!):
1:00 "Property Law for the Ages," by University of Chicago Law Professor Lior Strahilevitz
1:30 "Allocating Scarce Medical Resources During a Public Health Crisis: Should Age Matter?" by Houston Law Center Professor Jessica Mantel
2:00 "Anti-Racism in Nursing Homes," by Elizabeth Chen, Acting Assistant Professor, NYU Law
3:00 "Incorporating Cultural Sensitivity in Elder Law Courses", by Richard Kaplan, University of Illinois Law
4:00 "End of Life, Elder Abuse, and Guardianship: An Exploration of NY's Surrogate Decision-making Framework," by Deirdre Lok and Tristan Sullivan, Counsel at the Weinburg Center for Elder Justice
Registration (Free!) is here, and New York CLE credits are available.
July 28, 2021 in Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Programs/CLEs, Webinars | Permalink | Comments (0)
Wednesday, July 21, 2021
Elizabeth Moran, a relatively new staff attorney for the ABA's Commission on Law and Aging, has an interesting article in the latest issue of Bifocal, Vol. 42, Issue 6 (July-August 2021). Moran outlines several key recommendations made by the National Guardianship Network during their May 2021 national Summit. She points to two of the 22 recommendations that bear on "effective communication" for persons with disabilities, especially when involved in court proceedings that may affect any determination of "legal capacity."
Recommendation 1.2 advocates for courts and state authorities "must ensure that all judicial proceedings" that can impact a determination of an adult's legal capacity must provide "meaningful due process" which includes respect for the individual's "preferred communication accommodations."
Recommendation 2.4 provides that federal and state authorities "should recognize that supported decision-making can be a reasonable accommodation under the Americans with Disabilities act of 1990, as amended, in supporting an individual in making their own decisions and retaining their right to do so."
Moran acknowledges there is weak understanding within some courts for how supported decision-making will work, even as she advocates strongly for its use. She writes:
While there is growing awareness of “supported decision-making” (SDM), particularly as an alternative to guardianship, SDM does not have a universally accepted legal definition. It is, however, becoming a more commonly understood concept of integrated supports which honors an individual’s integrity of choice with the underlying principle that, with enough appropriate supports and services, nearly every individual has the capacity to make decisions. When people use SDM as a communication accommodation, they use family members, friends, professionals, and others they trust and who know them well to help them understand the situations and choices they face, but with the ultimate choice left to the adult. This eliminates a substitute decision-maker and maximizes autonomy for the individual who may need communication supports for speaking, reading, writing, or understanding in order to meaningfully participate. The need for this kind of support necessarily includes and can provide for meaningful participation in court services, programs and activities.
For more on this important topic, read Moran's full piece, "Something to Talk About: Supported Decision Making and Access to Justice for All."
July 21, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Federal Statutes/Regulations, State Statutes/Regulations | Permalink | Comments (0)
Monday, July 19, 2021
UVA Law Professor Naomi Cahn: Why Conservatorships Like the One Controlling Britney Spears Can Lead to Abuse
Prolific writer Naomi Cahn, who in 2020 moved from George Washington to University of Virginia School of Law as a distinguished professor and director of UVA's Family Law Center, has a new commentary on the potential impact of the Britney Spears' litigation challenging her California-based conservatorship. Professor Cahn observes at the outset:
Spears’ case is unusual: Conservatorships are typically not imposed on someone who doesn’t have severe cognitive impairments, and Spears has toured the world, released four albums and earned US$131 million, all while deemed legally unfit to manage her finances or her own body.
Despite the unique circumstances of Ms. Spears' circumstances, her case demonstrates the lack of national data tracking such "protective" proceedings. Professor Cahn writes:
Broad powers and “anemic” oversight make conservatorships subject to multiple forms of abuse, ranging from the imposition of unnecessary restrictions on the individual to financial mismanagement. Nothing can be done if no one finds out about the abuse.
A 2010 U.S. government report identified hundreds of allegations of physical abuse, neglect and financial impropriety by conservators. Most of them related to financial exploitation, and that, in turn, often meant that the victim’s family was affected, losing not just expected inheritances but also contact with the person subject to the conservatorship.
A 2017 New Yorker article on abusive guardians highlighted the case of April Parks, who was sentenced to up to 40 years in prison for financial conduct related to numerous conservatorships she handled. She was also ordered to pay more than half a million dollars to her victims.
But beyond these anecdotes, no one even knows the magnitude of the problem. That’s because conservatorships are subject to state law, and each state handles the imposition of them as well as data collection differently. And a 2018 Senate report found that most states are unable to report accurate data on conservatorships.
Professor Cahn sees Britney Spears' case as generating a national outrage that was missing from earlier anecdotal indications of problems for older adults trapped in "protective" proceedings. She concludes:
Spears may soon find herself free of her conservatorship. Regardless, her situation has already put a spotlight on the potential for abuse – and it may lead to a better system for those who genuinely need the assistance.
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  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?
Monday, July 12, 2021
The California Bar has asked for input on Proposed Formal Opinion Interim No. 13-0002 (Client with Diminished Capacity). According to the announcement
Proposed Formal Opinion Interim No. 13‑0002 considers: What are the ethical obligations of a lawyer for a client with diminished capacity?
The opinion interprets rules 1.0.1(e), 1.1, 1.2, 1.4, 1.6, 1.7, and 8.4.1 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code section 6068(e).
The opinion digest states: A lawyer for a client with diminished capacity should attempt, insofar as reasonably possible, to preserve a normal attorney client relationship with the client, that is, a relationship in which the client makes those decisions normally reserved to the client. The lawyer’s ethical obligations to such a client do not change, but the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them. In particular, the duties of competence, communication, loyalty, and nondiscrimination may require additional measures to ensure that the client’s decision-making authority is preserved and respected. In representing such a client, a lawyer must sometimes make difficult judgments relating to the client’s capacity. Provided that such judgments are informed and disinterested, they should not lead to professional discipline. In some situations, the client’s lack of capacity may require that the lawyer decline to effectuate the client’s expressed wishes. When the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm, the lawyer may seek the client’s informed consent to take protective measures. If the client cannot or does not give informed consent, the lawyer may be unable to protect the client against harm. A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.
At its meeting on October 23, 2020, and in accordance with their procedures, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 13-0002 for a 90-day public comment distribution. Subsequently, at its meeting on June 11, 2021, COPRAC revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No. 13-0002 for an additional 60-day public comment distribution.
The text of the proposed opinion is available here.
Republished July 19 to correct error in title.
Seems like a good time to remind everyone of the fabulous resource from the ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacities: A Handbook for Lawyers, 2nd Edition. It's a must have for every attorney's library.
Sunday, July 11, 2021
Analyzing Britney Spears' Conservatorship: How Should Courts Respond to Allegations of a Toxic Guardianship?
This summer, J. Collin Fulton, a rising 2L student at Dickinson Law, with a prelaw background in journalism, has been doing a fantastic job while working on projects with me. He put together this very thoughtful overview of how Britney Spears' concerns, arising in the context of the California-based proceeding, may be relevant to the larger analysis of guardianships and conservatorships across the nation.
In the areas of guardianship and conservatorship law, perhaps no recent case has captured the attention of the American public as thoroughly as the conservatorship of Britney Spears. The Pop singer’s conservatorship was established in California in 2008 and has become one of the best-known examples of how, under U.S. law, a person can have the management of both their personal life and financial affairs placed under the control of a court-appointed guardian/conservator, typically as a result of mental or physical conditions or advanced age.
While a legion of Ms. Spears’ fans has routinely called into question both the necessity and nature of the singer’s conservatorship, it was the release of the New York Times' 2019 documentary “Framing Britney Spears” which brought the details of Ms. Spears conservatorship to the attention of the broader public. I personally became aware following the Times’ publication on June 22nd of an article detailing how Ms. Spears herself feels about the conservatorship. Based on court records acquired by the NYTimes, the article details both Ms. Spears opposition to the continuance of her conservatorship in its present form as well as Ms. Spears claims concerning some of the effects the conservatorship has had on her life. Based on court documents going back to 2014, the NYTimes article reports that:
- Spears “feels the conservatorship has become an oppressive and controlling tool against her.”
- Spears has informed the court that, as a result of the conservatorship, she felt compelled to perform against her will and compelled to stay at a mental health facility against her will.
- The conservatorship restricted a broad range of Ms. Spears decision making, ranging from who she was allowed to date to the manner in which she could decorate her home.
Ms. Spears’s June 23 public testimony further cast the conservatorship in a negative light. In the testimony, the singer claimed that, against her will, she was forced to take mood-altering drugs and forced onto contraception. Ms. Spears again called for her conservatorship to be ended and generally for the laws surrounding conservatorships to be changed. This call has been echoed by numerous other singers in support of Ms. Spears, including Justin Timberlake, Halsey, Brandy, and Mariah Carrey, as reported by the BBC.
Given what Ms. Spears claims has transpired as a result of her conservatorship and the public support she has received, I became deeply curious about how a conservatorship can actually be terminated. Given the complexity of guardianship/conservatorship laws, this is a question without a simple answer.
First, state laws vary significantly regarding who, how, and why a person can be placed under a guardianship/conservatorship. As Ms. Spears’s case takes place in California, I focus there.
There are two types of conservatorships under California law: Lanterman-Petris-Short (LPS) and Probate conservatorships, the latter of which is exemplified by Ms. Spears’s situation.
Such conservatorships are typically permanent affairs in California; however, they can be terminated in the following ways:
- The conservatorship ends due to the death of the conservatee.
- A judge may end the conservatorship upon petition to do so resulting from the conservatee regaining the ability to manage their own affairs (The argument Ms. Spears appears to be currently making).
- A conservatorship of the estate can be ended if the conservatee ceases to possess any assets to protect.
Learning this raised a new question for me: why would a court allow a conservatorship such as Ms. Spears’s to continue given her allegations? I believe the answer to this question lies in the purpose of guardianship/conservatorship laws.
This purpose is perhaps best exemplified in the California “Handbook for Conservators,” which the state mandates for conservator cases. The Handbook has a clear message for every new conservator: “You have been appointed conservator because someone – your parent, spouse, child, or other relative or friend – needs help, and you are willing to lend a hand.” This simple message, in my opinion, captures the thought behind guardianship and conservatorship laws. There are, sadly, situations in which a person is unable to manage their affairs. Guardianships and conservatorships allow for a legal redress to such situations, enabling courts to appoint a trusted individual to provide assistance in such circumstances.
The California Handbook also highlights another important fact central to the functionality of conservatorships: “The position of conservator is one of great trust and responsibility. The court and conservatee are trusting you to follow the law and to act in the conservatee’s best interests.” Given the incredible responsibilities assumed by a guardian/conservator, it is indeed imperative that guardians/conservators execute their duties with the utmost understanding and respect for the individual's own values and goals, while also complying with the legal obligation to make decisions in the best interest of the individual they have been appointed to protect.
With the purpose of guardianships/conservatorships now understood, I turn back to Ms. Spears and the question of why, given her allegations, her conservatorship still remains. The answer is, simply, that legal process such as this take time.
Just as a court needed to consider a multitude of factors in determining that Ms. Spears should become a conservatee, the court must now perform proper inquiries into the allegations that Ms. Spears has raised and then determine an appropriate response to take based on the validity of these allegations. This is true not only for Ms. Spears, but for any person in a guardianship/conservatorship situation. Guardianships/conservatorships are serious affairs, ones in which a person’s ability to control their own lives have been taken from them and handed to another individual, hopefully one who is trustworthy and will act in their best interest. Should doubts emerge about the actions of a guardian/conservator, or indeed the necessity of an established guardianship/conservatorship itself, investigating the situation thoroughly is paramount to the integrity of not only the guardianship/conservatorship in question but also the legal system of guardianships/conservatorships at large.
Mr. Fulton concludes: I thus believe that while a quick response from the court may satiate the immediate public outcry for change, a proper inquiry which establishes the truth and, in turn, enables the court to act based on the facts will not only improve Ms. Spears' situation but enhance public knowledge on the current state of guardianship/conservatorship laws in the United States.
July 11, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Friday, July 9, 2021
During the first part of my summer, I wrote a review on Senator Amy Klobuchar's April 2021 book, Antitrust: Taking On Monopoly Power From the Gilded Age to the Digital Age. That turned out to be a very enjoyable, stimulating task and my article will be published late summer or early fall. This gave me the incentive to rethink how antitrust law, as a form of pro-consumer-protection "competition" rules might affect long-term care, including the concentration of ownership and operation of nursing homes and other types of "senior living." The student editor for the Law Review, Claudia Bernstein (Dickinson Law, Class of 2022), also has been captured by the topic, and she sent me an article today from the New York Times that furthered this inquiry. A key passage:
[In the U.S.] Fewer new businesses are starting. Existing businesses have slowed the pace at which they hire new workers . . . . Workers are less likely to switch jobs or move to a new city. Companies are investing in new buildings and equipment at a lower rate. And small businesses make up a shrinking share of the economy.
Together, these trends suggest that the economy suffers from a lack of fair competition, many economists believe. Large corporations are often able to increase profits not by providing better products than their rivals but instead by being so big that they exercise power over workers and consumers. The government also plays a role, through policies that protect existing companies at the expense of start-ups and new entrants into an industry.
The technical term for excess profits from a lack of competition is “monopoly rents.” Just think about how frustrated you may have been by the customer service from an airline, cable-television provider or health insurer. And then imagine how frustrating it may be to work there. Despite the problems at these companies, consumers and workers don’t always have good alternatives.
In my local area, there is a variation on this problem. As I have written about recently, county officials are proposing to close the county's "nursing home," which in my experience has been well run and served as a viable alternative for necessary services, including memory care. The likely purchaser will be a for-profit company (a modest-size, relatively new tri-state regional player). The county hopes to cease "having to subside the facility with general tax money." But, without those "subsidies," consumers' payment for care will have to increase, affecting residents unlikely to have the ability to pay more. As one article on the history of Pennsylvania's county nursing home conversions concludes:
County-owned homes, once ubiquitous, are becoming less common in Pennsylvania. Facilities that have been privatized generally have lower ratings on common metrics; a York Dispatch study in 2018 found that 15 formerly county-owned facilities sold since 2005 had an average rating of 1.9 stars out of five on the common scale used by the Centers for Medicare and Medicaid Services, while the state’s 21 county-owned homes averaged 3.1 stars [out of a possible 5 stars].
Monday, July 5, 2021
I'm currently working on an article that looks at senior living trends, and came across several interesting, significant data points in a January 2021 article entitled The Future of Headship and Homeownership, by Laurie Goodman and Jun Zhu for the Urban Institute.
The central prediction is that household growth will be "weak" over the next two decades, a decline associated with slowing of U.S. population growth and lower "headship rates" among most age groups. The terms are defined at the beginning of the article.
Further, key takeaways from the article include these findings:
- Almost all net household growth will be from senior households. Of the 16.1 million net new households formed between 2020 and 2040, 13.8 million will be headed by someone over 65.
- All net household growth will be from households of color. Between 2020 and 2040, there will be 16.1 million net new households. Hispanic households will grow by 8.6 million, households of other races (mostly Asian households) will grow by 4.8 million, and Black households will grow by 3.4 million. White households will decline by 0.6 million.
However, despite what at first seems like "better" (if not good news) for households of color, the authors also predict:
- The decline in the homeownership rate will be particularly pronounced for Black households headed by 45-to 74-year-olds. If current policies stay the same, the Black homeownership rate will fall well below the rate of previous generations at the same age and result in an unprecedented number of Black renters over 65; we project elderly Black renters will more than double from 1.3 million in 2020 to 2.6 million in 2040.
Thursday, July 1, 2021
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.
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?
Wednesday, June 30, 2021
A number of years ago, I had an email correspondence going with Dr. Jason Karlawish, Professor of Medicine, Medical Ethics and Health Policy, and Neurology at the University of Pennsylvania. He was writing and speaking in intelligent, understandable ways about complex issues in degenerative neurocognitive disorders.
My sister brought him back to my attention, as she had just heard Brené Brown's podcast interview with Dr. Karlawish. Dr. Karlawish recently published an important book on The Problem of Alzheimer's. I immediately ordered the book and I'm still reading, but I can tell this is -- and should be -- an important resource for anyone trying to understand or explain the Alzheimer's or other progressive impairments in cognition. Frankly, that means all of us. He is taking on an essential question: "What's a good life when you're losing your ability to determine that life for yourself?" The subtitle of the book helps explain the scope: "How science, culture, and politics turned a rare disease into a crisis and what we can do about it."
I'm sure I'll write more hear about this book as I plunge ever deeper into the clear prose, organized in logical chunks, where I'm finding "gold" embedded on every page. It is not a soothing read, but that is exactly why it is so important.
June 30, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Statistics | Permalink | Comments (0)
Saturday, June 19, 2021
Our law school, Dickinson Law, has been engaged in an important reflective process the last year, under the leadership of key individuals including Danielle Conway and Dermot Groome, among others. We have worked together and separately to think about inclusion, and race, and discrimination, and difference, and about how "the law" plays a part in making matters better or worse.
On this first official, national celebration of the history of Juneteenth, I'm finishing reading a remarkable book, How The Word Is Passed by Clint Smith. The journalist and poet uses his personal journeys to a number of locations inside and outside the U.S. that have been part of the history of slavery in the U.S. One chapter is devoted to Galveston Island and its complicated history as the site where a Union general is said to have stood on the balcony of a villa in 1865 to announce the end of slavery to the people of Texas.
Mr. Smith attended one of the annual Texas state Juneteenth celebrations at that villa and he writes about the impact on his own life's history as he watched Galveston youth narrating a chronology of events that shaped both slavery and its aftermath:
I watched these young people read to the audience parts of history that placed our country in context. I felt, in that moment, envious of them, Had I known when I was younger what some of these students were sharing, I felt as if I would have been liberated from a social and emotional paralysis that for so long I could not name -- a paralysis that had arisen from never knowing enough of my own history to effectively identify the lies I was being told by others: lies about what slavery was and what it did to people; lies about what came after our supposed emancipation; lies about why our country looks the way it does today. I had grown up in a world that never tired of telling me and other Black children like me all of the things that were wrong with us, all of the things we needed to do better. But not enough people spoke about the reason so many Black children grow up in communities saturated with poverty and violence. Not enough people spoke about how these realities were the result of decisions made by people in power and had existed for generations before us.
After college, when I was doing more reading on my own, I began to understand all that has happened to our communities, to our people, over generations -- it was liberating. I had language to name what I felt but had never known how to say. People sometimes believe that if they talk to Black youth about the historical legacy of slavery -- and the intergenerational iterations of systemic racism that followed -- young people will feel overwhelmed and shut down. But there is enormous value in providing young people with the language, the history, and the framework to identify why their society looks the way it does. . . . I watched these young people share this history, and I dreamed of what it might mean if we could extend these lessons to every child. How different might our country look if all of us fully understood what happened here?
Mr. Smith wrote these words in the book that was published just this month, June of 2021, without knowing what was about to take place.
A woman who also recognized the power of this history, is Opal Lee, whose lifetime of advocacy began with her own home in Marshall, Texas, where on Juneteenth, 1939 an angry mob of white supremacists set fire to the home of 12-year-old Opal. She is now 94-years-old. She sat next to President Biden as he signed the legislation to make the today a national holiday of remembrance and celebration. Opal Lee, "the Grandmother of Juneteenth," has been walking -- marching -- for most of her life in support of this moment. But, as Clint Smith observes, "The project of freedom, Juneteenth reminds us, is precarious. . . ."
Read more about Opal Lee here, from the Washington Post.
Tuesday, June 15, 2021
Bloomberg recently published an opinion regarding the Uniform Definition of Brain Death, A Scary Plan to Revise the Definition of Death. "People may be less willing to agree to be organ donors if they believe the quest for organs changes how patients are treated."
According to the article, the Uniform Law Commission has a study committee, looking at "the need for and feasibility of updating the Uniform Determination of Death Act (1980), which has been enacted in 44 states. Issues to be considered include lack of uniformity in the medical standards used to determine death by neurologic criteria, the relevance of hormonal functions, and whether notice should be provided before a determination of death."
The Bloomberg article mentions an opinion piece published last year in the Annals of Internal Medicine which the Bloomberg article suggests is concerning. The Bloomberg article examines the elements of the proposal and reviews the advantages of it, but also notes opposition to it. "Despite all the arguments in favor of the revisions, more than 100 experts in medicine, law, philosophy and bioethics have signed a statement of opposition...."
The article discusses the objections and how the proposal might reduce the amount of organ donations. The article is very interesting and if you could End of Life planning in your classes, this article gives you some thoughtful background.