Monday, December 10, 2018
For anyone working in legal fields where adult guardianships may be an option, for anyone teaching elder law, health care law, constitutional law or even landlord-tenant law, a recent New York Times article, "I'm Petitioning . . . for the Return of My Life," is an important read.
On a threshold level, this is a well-told tale of one woman, Ms. Funke, who becomes subject to an intervention under New York adult protective services law, and, eventually, to a full-blown guardianship proceeding. It can be easy to become enraged on behalf of Ms. Funke as you read details about her past life as a freelance journalist and world traveler, and compare it to the limitations placed on her essential existence under a guardianship.
The article is a rather classic example of using one tragic story, a human story, to paint a picture of a government process gone wrong. At several points in the article, the writer, John Leland, offers questions that suggest some conclusions about how unfair the process has been to Ms. Funke. The writer asks, for example,
"If you were Ms. Funke, shouldn't you be allowed to withdraw into the covers [of your bed] if you wanted to? And the clutter in your apartment -- couldn't people understand that a writer needs materials around? Even if she were evicted, she had money to start somewhere else. Courts evict people with lots less [than she appears to have]. "
It's implied that the answers to those questions may outweigh the fact that the protective services intervention prevented the landlord from completing an eviction of Ms. Funke, an eviction that would have forced her out of her apartment of 40+ years.
Other, less dramatic details in the article suggest that for every Ms. Funke, there may be other people -- an unknown number of people in New York -- who are also very alone and who have also lost control over their lives because of physical frailty, mental decline, depression or other facts, and who are rescued with the help of a protective services intervention. Sometimes the intervention interrupts the decline, usually with the help of family member or friend who volunteers to help, sometimes acting with a measure of authority under a power of attorney, making a guardianship unnecessary.
The challenge, of course, is knowing when to help (and how far to go), and when to preserve the individual's right to make choices that appear unsafe. Some of the most complex cases involve people who have spent a lifetime on a unique and often solo path, and now have few family members or friends to help them as that path becomes rockier with age or illness, especially when they have no plan for the future. In the face of such facts, as one person interviewed in the article observes, guardianships are a "blunt instrument."
Something I wrote about last week also figures into the New York situation -- the apparent absence of a guardianship case tracking or monitoring system.
But another issue I'm concerned with is also suggested. At one point, an interview with one of Ms. Funke's guardians, a so-called professional (in other words, not a family member or a public guardian) discloses he does not know how far his authority as guardian extends. For example, would he be allowed to prevent her from marrying? He responded, he did not know.
It would seem that guardians and other agents, alleged incapacitated persons, -- and family members -- could all benefit from greater information, and to ongoing education on their rights, duties and options. That was also a theme emerging from article asking the question "Where's Grandma?" that I linked to last week and that I link to again here.
My thanks to the several folks who suggested this New York Times article for discussion on our Blog, including my Dickinson Law colleague, international human rights expert, Dermot Groome.
December 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Sunday, December 9, 2018
Well, I guess it was only a matter of time. I've blogged on numerous occasions about "elder tech" and now it seems Apple, at least its watch, is moving into that market. Kaiser Health News reported In Grandma’s Stocking: An Apple Watch To Monitor Falls, Track Heart Rhythms.
[W]hen Apple unveiled its latest model in September — the Series 4, which starts at $399 — it was clear it was expanding its target audience. This Apple Watch includes new features designed to detect falls and heart problems. With descriptions like “part guardian, part guru” and “designed to improve your health … and powerful enough to protect it,” the tech giant signaled its move toward preventive health and a much wider demographic.
One expert quoted in the article noted that the older generation is used to wearing watches and thus this would be a much easier wearable for them. Here's how the fall monitoring feature works. "The fall-monitoring app uses sensors in the watchband, which are automatically enabled for people 65 and older after they input their age. These sensors track and record the user’s movements, and note if the wearer’s gait becomes unsteady. ... If a fall is detected, the watch sends its wearer a notification. If the wearer doesn’t respond within a minute by tapping a button on the watch to deactivate this signal, emergency services will be alerted that the wearer needs help." We all know how falls can lead to devastating complications for older persons.
The heart monitor feature again using wristband sensors is used "to monitor a patient’s heartbeat and send alerts if it gets too fast or too slow. Specifically, the app is meant to detect atrial fibrillation, which is a type of arrhythmia, also described as a problem with the speed or rhythm of the heartbeat." The article notes some doctors have concerns that this feature will send folks needlessly to the ER.
The article notes that the FDA has "cleared" but not approved the feature, which means "that means they haven’t faced as much rigorous testing as something that has gained the agency’s formal OK."
More to come.
Wednesday, December 5, 2018
I have collected four items regarding nursing homes, that I thought I'd summarize in one post.
Regular readers will recall that Florida now requires SNFs to have generators (after last year's hurricane). Last month's Health News Florida reported that many nursing hones are seeking extensions of time on the requirement to have generators. Nursing Homes Seek More Time On Generator Requirements notes that "[m]ore than 40 percent of Florida nursing homes are asking health-care regulators for more time to meet backup-power requirements pushed by Gov. Rick Scott after Hurricane Irma last year... But ... the state’s top health-care regulator, said his agency won’t approve waiver requests for deadbeat facilities that haven’t worked over the past several months to carry out emergency backup-power plans." Slightly more than 25% of the facilities are in compliance and over half of ALFs are. Some ALFs not in compliance are the focus of penalties, "the state has moved ahead with penalizing a handful of ALFs that aren’t in compliance. In November, the state has entered into settlement agreements with more than a dozen ALF providers across the state to settle allegations that they failed to meet the requirements, according to a review of information on a state website."
The Washington Post ran an article last month, Overdoses, bedsores, broken bones: What happened when a private-equity firm sought to care for society’s most vulnerable. The article focused on the ownership of of a chain owned by "the Carlyle Group, one of the richest private-equity firms in the world [where], the ManorCare nursing-home chain struggled financially until it filed for bankruptcy in March. During the five years preceding the bankruptcy, the second-largest nursing-home chain in the United States exposed its roughly 25,000 patients to increasing health risks, according to inspection records analyzed by The Washington Post." The article includes a response from the chain as well as the private equity group:
Carlyle and HCR ManorCare representatives said care at the nursing homes was never compromised by financial considerations. The cost-cutting trimmed administrative expenses, not nursing costs, they said. The number of nursing hours provided per patient stayed fairly constant in the years leading up to the bankruptcy, according to the figures that the company reported to the government.
HCR ManorCare officials also disputed the idea that quality at the homes had suffered in recent years. They said their nursing homes offered excellent service based on the ratings issued by Medicare, the federal government’s insurance program for older Americans. ManorCare homes averaged 3.2 stars in the years before bankruptcy, which was slightly below the U.S. average. Some watchdog groups, such as the Center for Medicare Advocacy, are critical of the five-star rating system, however, because it relies on unaudited data reported by nursing homes.
The article examined complaints in several states, reported on the views expressed by the private euity firm, including the role of Medicare reimbursements and reported that "[a]fter the bankruptcy, the nursing home chain was bought by Promedica Health, a nonprofit group."
Bloomberg Law reported last week that payroll data is being used to examine staffing. Sparse Nursing Home Staffing to Be Sniffed Out in Payroll Data explains that "[t]he payroll data will be used to identify nursing homes that have a significant drop in staff on weekends or have several days in a quarter without a registered nurse on site, the federal Medicare agency said Nov. 30. Nursing homes must have a registered nurse on site every day for eight hours, the agency said on its website."
In that same vein, Kaiser Health News reported Feds Order More Weekend Inspections Of Nursing Homes To Catch Understaffing. The payroll data mentioned in item #3 plays a role. "The federal Centers for Medicare & Medicaid Services said it will identify nursing homes for which payroll records indicate low weekend staffing or that they operate without a registered nurse. Medicare will instruct state inspectors to focus on those potential violations during visits." Does this mean there will be a flurry of inspections? No. As the article explains, "[t]he new directive instructs inspectors to more thoroughly evaluate staffing at facilities Medicare flags. The edict does not mean a flurry of sudden inspections. Instead, Medicare wants heightened focus on those nursing homes when inspectors come for their standard reviews, which take place roughly once a year for most facilities."
I've been a bit busier than usual lately and haven't felt I could take the time to Blog regularly even though I'm constantly seeing intriguing topics to discuss. I'm buried in a manuscript with a looming deadline! Fortunately, I'm seeing that Becky Morgan is keeping everyone updated and I've been benefiting from her regular reports. I hope to get back to daily posts of my own by January.
In the meantime, I can report on a smaller, interim task of serving as a co-presenter for a half-day Continuing Legal Education program at the Pennsylvania Bar Institute on new developments in Guardianship Practice and Procedure on Friday, December 7. Among the important developments, the Pennsylvania Courts is nearing completion on its statewide implementation of a Guardian Tracking System or GTS. In 2014, the Supreme Court's Elder Law Task Force strongly recommended adoption of such a system, having determined just how little was actually known across the state about open guardian cases. Implementation of the new system began with a pilot in Allegheny County in July 2018. As of today, 60 counties are "live" in the system. The remaining 7 counties are scheduled to be included by the end of this month.
With the help of the new tracking system, I learned that we currently have more than 14,000 active guardianships in Pennsylvania.
Key features of the GTS system include:
- Automation: a means of automatically running a process to check specific aspects of guardianship reports for missing information or other concerns;
- Flagging: when a concern is detected, the item is automatically flagged, allowing court personnel to review and respond to the potential problem;
- State-wide Court Communications: providing the court system with a means of immediate and cost-effective state-wide communications whenever a judge in one case is alerted to suspicion of neglect or other improper conduct by a guardian; and
- Alerts on Specific Guardians: when an "alert" is triggered on a specific guardian in one case, the system will generate notices to all of the other courts in the state, alerting them to the potential need for action on that individual in their cases.
Such a system required entirely new software, new reporting forms, and new court rules to make implementation effective. We will be talking extensively about the new rules and forms on Friday. The migration from the older system of record-keeping imposes a huge learning curve on many involved in guardianship matters, including lawyers.
The need for better systems in Pennsylvania has been highlighted during the last year of controversies surrounding appointment of one particular individual as guardian for alleged incapacitated persons in three Pennsylvania counties. She is accused of mismanaging cases, plus it turned out she had a criminal history for fraud in another state.
See also the recent news reports about another Pennsylvania guardianship matter that asks the troubling question "Where's Grandma?" The reporter on this case, Cherri Gregg, who also happens to be a lawyer, opines that everyone in the case, including the lawyer appointed as guardian, and the family members of the person subject to the guardianship, needed better education about their roles after the grandmother's own children passed away, as the grandmother became more vulnerable, and especially when it became necessary to place her in a nursing home.
My special thanks to Karen Buck, Executive Director of the SeniorLAW Center in Philadelphia, and the good folks at Pennsylvania Courts' Office of Elder Justice for helping me with my part of the presentation for Friday!
December 5, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
The American Bar Association Commission on Law & Aging has published the Advance Directives: Counseling Guide for Lawyers. The website explains the usefulness of the guide: "designed to assist lawyers and health care professionals in formulating end-of-life health decision plans that are clearly written and effective... The guide provides detailed information on how to bridge the chasm between lawyers and health care providers. It helps lawyers to provide guidance that is more in harmony with the clinical and family realities that clients face. The foundation for it is a set of eight principles to guide patients and clients through the advance care planning process." The three sections include the planning principles, a checklist for attorneys, and resources. All are available for download individually, or the entire guide may be downloaded for free or purchased from the ABA. The guide contains a lot of helpful info for attorneys, including checklists for a first and second interview, a sample letter to the client's doctor and a HIPAA access form. Check it out!
Tuesday, December 4, 2018
A recent article mentioned that the number of elders in Texas who will need SNF care is going to be a "silver tsunami." The Houston Chronicle published this article, Silver Tsunami set to hit Texas nursing homes where the article acknowledges "[m]ore than 12 percent of the Texas population is over 65, and that number is growing. According to the Texas Demographic Center, the over-65 population across the state is projected to increase by more than 262 percent by 2050." But it is more than the numbers creating this "silver tsunami: the impact is magnified "by the increasingly complex medical conditions — such as Parkinson’s and Alzheimer’s — of aging Texans needing nursing home care. According to data from the Alzheimer’s Association “2018 Texas Facts and Figures,” more than 380,000 of the state’s residents have already developed Alzheimer’s disease or other dementia. In Texas, Alzheimer’s is the sixth leading cause of death, and its prevalence is expected to increase by almost 30 percent by 2025."
The article also highlights the fact that in many instances the caregivers themselves will be elders.
We all need to be planning ahead.....
Monday, December 3, 2018
U.S. life expectancy has declined. What's up with that? According to an article in the Washington Post, this is not good news for us. U.S. life expectancy declines again, a dismal trend not seen since World War I emphasizes the impact of the opioid and suicide crises.
The data continued the longest sustained decline in expected life span at birth in a century, an appalling performance not seen in the United States since 1915 through 1918. That four-year period included World War I and a flu pandemic that killed 675,000 people in the United States and perhaps 50 million worldwide.
The U.S. trend seems to be opposite of what is happening in other countries, and although the decline may not seem very large, it is still part of an overall concerning trend. The numbers re: opioid deaths cited in the article are shocking. Read the article to absorb the data and look at the geographical info detailing where opioid deaths are highest and lowest. It's just not drug deaths attributing to the decline. "Other factors in the life expectancy decline include a spike in deaths from flu last winter and increases in deaths from chronic lower respiratory diseases, Alzheimer’s disease, strokes and suicide. Deaths from heart disease, the No. 1 killer of Americans, which had been declining until 2011, continued to level off. Deaths from cancer continued their long, steady, downward trend."
December 3, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Other, State Cases, Statistics | Permalink
Friday, November 30, 2018
Earlier I had blogged about the upcoming hearing on guardianships scheduled for the Senate Special Committee on Aging The hearing was held on November 28, 2018, and a report as well as the video of the hearing are now available. You can also access the witness statements here.
November 30, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink
Friday, November 23, 2018
With Thanksgiving 2018 behind us and family on our minds, it seemed timely that the New York Times ran an article about the newest entry into robot caregivers. Meet Zora, the Robot Caregiver explains that this small robot, perhaps "more cute toy than futuristic marvel ... is at the center of an experiment in France to change care for elderly patients." The nursing home using Zora found that residents, with dementia or needing 24 hour care,forrmed emotional attachments to it. A nurse, out of sight of residents, controls the robot via a laptop, giving it commands to speak and do activities such as exercises and games.
The article focuses as well on the shortcomings of any robotic caregivers-that is, they aren't human. Regardless, we all know about the looming caregiver shortage. Will robot caregivers fill that shortage?
The experience at Jouarre provides a window into a future when we will rely more on robots to help care for loved ones as they age.
Zora Bots, the Belgium-based provider of the robot at Jouarre, says it has sold over 1,000 of the robots to health care facilities around the world, including in the United States, Asia and Middle East. It is part of a growing emphasis on robotics focused on care. A robot dog made by Sony has been marketed as a companion for older adults.
France, the article explains faces ongoing and serious issues regarding health care
[H]ospitals have been facing a national crisis, with health care professionals striking and protesting budget cuts and staff shortages. A rise of suicides of nurses and doctors has made national headlines, and France’s health minister acknowledged that the hospital system was “running out of steam.”
The challenge will be creating machines capable of doing more complex jobs. Lifting a patient’s mood with a song is different from providing health care. The French hospital, which bought the robot with the help of a charitable grant, brings out Zora just a few times a month.
In Australia, a hospital using a Zora robot studied the effects on patients and staff. The researchers found that it improved the mood of some patients, and got them more involved in activities, but required significant technical support.
The experience of the French hospital staff has been similar.
However, these robot caregivers are not health care providers-at least not yet. What the research has shown is that the residents can feel emotional bonds with the robots and they can help residents feel happier, or even, as the article notes, confide things in the robots that they won't tell human caregivers.
Friday, November 16, 2018
We all know that caregiving can be a 24/7/365 job. And many caregivers are working full time and caregiving part-time, while others leave their jobs to caregive. In those situations, it is no less important for caregivers to save for their own retirement, no matter how hard that may seem to be. US News ran a story, Caregivers Should Save for Retirement which focuses on caregiving for someone with special needs. The article highlights the issues
ADVANCES IN MEDICINE and technology are allowing Americans – including those with special needs and disabilities – to enjoy longer, fuller lives. Still, as a caregiver, the emotional, physical and financial toll can be draining and could potentially prevent you from being able to plan for your own future. Research shows 30 percent of caregivers are not saving and investing for their own retirement because of the time and cost required for caring for those with special needs.
The article suggests the following for the caregiver: check out the available programs and benefits, continue savings and don't forget to invest, consider the implications of your financial situation on the individual with special needs who is applying for means-tested assistance, be aware of the impact of well-meaning relatives making a testamentary gift for the individual, and housing options and their various levels of care to name a few. The article also discusses special needs trusts and ends with this:
The key takeaway is that planning for your financial future, while at the same time ensuring continuity of care for a loved one, can be extremely complex, but you don't have to do this alone. Leveraging professional resources and revisiting your plan periodically can help keep you on track as your needs, and the needs of your family, continue to evolve.
Thursday, November 15, 2018
These tips include splitting caregiving responsibilities and providing respite for the local caregiver. When deciding how to split responsibilities, the article suggests the long distance caregiver identify her strengths and limitations. Recognizing that the long-distance caregiver isn't providing day to day hands on care, the long-distance caregiver can still provide emotional support for the local caregiver, make arrangements with local organizations and do the online tasks and other items that can be done remotely.
Remember all caregivers are heroes, whether local or long-distance caregivers!
Tuesday, November 13, 2018
Focusing on the issue of stigma that accompanies the disease, the article notes the impact of Justice O'Connor going public about her condition. Dementia and specifically Alzheimer's can strike any one, regardless of fame or fortune. As the article notes
Justice O’Connor had joined a growing but still tiny group: public figures who choose to share a dementia diagnosis. ... The breakthrough came in 1994, when Ronald and Nancy Reagan released a handwritten letter disclosing his Alzheimer’s disease.
“In opening our hearts, we hope this might promote greater awareness of this condition,” the former president wrote. “Perhaps it will encourage a clearer understanding of the individuals and families who are affected by it.”
Musician Glen Campbell and his family reached a similar decision in 2011, announcing his Alzheimer’s diagnosis, and several farewell concerts, in a magazine interview. The concerts became a 15-month tour and an intimate, unflinching documentary.
The famous folks also include Pat Summit and Gene Wilder. So what is the value of famous folks going public with their diagnosis? We already know that a large number of folks are diagnosed with dementia and that Alzheimer's disease in particular is horrible disease in my opinion.
It’s hardly an obscure condition. About 5.7 million Americans have Alzheimer’s disease, the Alzheimer’s Association estimates. That represents just 60 to 80 percent of people with dementia, which takes multiple forms.
Though dementia rate seems to be declining, possibly because of rising education levels and better treatment for conditions like hypertension, both of which seem to help prevent dementia. But the number of Americans affected will continue to grow as the population grows and ages.
Already, Alzheimer’s has become the fifth leading cause of death for those aged 65 and older — and the only one for which medicine can’t yet offer prevention or treatment.
The article explains the value of famous folks going public with their diagnosis lessens the stigma others may feel from that diagnosis. Plus it may lead to earlier diagnosis for others and although there is no cure, it gives the patient and families more time to plan.
Sunday, November 11, 2018
Kaiser Health News ran a story recently on living with a terminal diagnosis. At Death’s Door, Shedding Light On How To Live explores the impact of such diagnosis on how one person decided to live the rest of her life and how she is coping with the diagnosis. The article lists the things she no longer does (regular exercise) or finds concerning: "[N]o more worrying, even for a minute, what anyone thinks of her. As [she] wrote in a recent blog post, 'All kinds of things … fall away at just about the exact moment the doctor says, ‘There is no treatment.'" She blogs about her situation and has found positive responses from readers yet the article notes others may not prefer to share their lives with strangers: "Other people may have very different perspectives as they take stock of their lives upon learning they have a terminal illness. Some may not want to share their innermost thoughts and feelings; others may do so willingly or if they feel other people really want to listen."
Thursday, November 1, 2018
The National Consumer Law Center sent out an email listing resources for attorneys and others helping elders recover from natural disasters. The email described the situation:
Older adults living in communities hit by natural disasters disproportionately suffer emotional trauma and financial hardship after the event. Age-related changes, including decreases in mobility and cognitive abilities make it harder for older adults to navigate the recovery process and access resources to repair or rebuild their homes. Once the immediate danger has passed, older adults will need assistance from insurance, government, and nonprofit organizations or other aid agencies to rebuild their home and community support system. In the days and weeks after the disaster older adults are forced to deal with a wide variety of issues, including home repair, reconnecting utilities, and making payments, including mortgage, credit cards, and student loans. Unlike many others affected by disasters, older adults may have fewer private assets to aid in recovery making the process to rebuild financially more difficult. Here are some resources the National Consumer Law Center (NCLC) has compiled to help guide advocates in advising older adults.
Issue Brief: Assisting Homeowners with Reverse Mortgages after a Natural Disaster: A Guide for Advocates, October 2018
Webinar: Assisting Older Homeowners after a Natural Disaster (National Center on Law and Elder Rights), June 20, 2018:
Free Webcast: Assisting Older Homeowners After a Natural Disaster, June 2018
Issue Brief: Helping Older Homeowners Recover from Natural Disasters, June 2018
Wednesday, October 31, 2018
Kaiser Health News wrote about when a doctor should have a conversation with a patient with dementia about gun ownership. Dementia And Guns: When Should Doctors Broach The Topic? explains the lack of guidance for health care professionals on whether and how to address the topic with patients.
Some patients refuse to answer. Many doctors don’t ask. As the number of Americans with dementia rises, health professionals are grappling with when and how to pose the question: “Do you have guns at home?”
While gun violence data is scarce, a Kaiser Health News investigation with PBS NewsHour published in June uncovered over 100 cases across the U.S. since 2012 in which people with dementia used guns to kill themselves or others.
As well, a diagnosis of dementia doesn't automatically mean a person is unable to handle a firearm. One program, according to the article, has developed guidance for health care professionals regarding gun violence. There are others who take the opposite view and one expert interviewed for the article reports that some patients are seeking out physicians who are "gun-friendly," resulting in the creation of a referral service.
The article defines the issues as (1) the legality of health care providers asking patients about gun ownership, (2) the reasons health care providers may not ask, (3) the timing of any such conversation, (4) recommendations regarding firearm ownership by those with dementia, and (5) what happens when the health care provider asks, The article discusses each of these issues from both perspectives.
I was aware that some professional guardians have dealt with the question of gun ownership when appointed to a case. This article offers a glimpse into the topic from the perspective of health care providers. The Hook Law Center also published a piece about guns and dementia based on a recent article in the New York Times. One of the points made in that article
The conversation about gun ownership and dementia may arise in any setting and can be initiated by a professional such as an elder law attorney or financial advisor. Many are hesitant to reveal gun ownership but, for those who do, they often don’t want to reveal locations, nor do they want to voluntarily give up possession of their firearms. When the discussion focuses on “taking things away” for a person with a diagnosis of dementia, this may feel like additional loss of control and can be extremely unpleasant. Instead, the conversation should be approached as one of safety. Unfortunately, dementia can often interfere with a person’s reasoning and decision-making skills, and the person may lack insight into the potential problem. However, when the discussion is presented as one of safety for themselves and loved ones, the conversation feels like less of an intrusion.
The article on the Hook Law website also addresses what to do with any firearms removed from someone with dementia, recommending "caution when removing firearms from a home and when advising individuals." Even though most states allow the temporary transfer of a firearm to a family member without a background check" not all do so, according to the article. The article also notes the prohibition on convicted felons possessing a fire arm "and states have strict laws about allowing the private sale of guns. Some gun stores and ranges offer storage and transportation options." The article recommends consulting with an attorney before acting.
PS-this is not intended to be a political post. I am just intending to keep readers up to date on topics relating to elder law.
Monday, October 29, 2018
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 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 (1)
Sunday, October 28, 2018
The latest issue of the Hastings Center Report is devoted to examining what gives a good life to someone in later life. Volume 48, Issue S3 is titled What Makes a Good Life in Late Life? Citizenship and Justice in Aging Societies. All 15 of the articles are available for free. The topics run the gamut from social policies to age-friendly initiatives to housing to communities to advance directives for people with dementia, to name a few. Be sure to read the introduction before reading any of the individual articles, so you have the context of the volume. Here's the abstract for the introduction
The ethical dimensions of an aging society are larger than the experience of chronic illness, the moral concerns of health care professionals, or the allocation of health care resources. What, then, is the role of bioethics in an aging society, beyond calling attention to these problems? Once we’ve agreed that aging is morally important and that population‐level aging across wealthy nations raises ethical concerns that cannot be fixed through transhumanism or other appeals to transcend aging and mortality through technology, what is our field’s contribution? We argue that it is time for bioethics to turn toward social justice and problems of injustice and that part of doing so is articulating a concept of good citizenship in an aging society that goes beyond health care relationships.
October 28, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Science | Permalink | Comments (0)
Friday, October 26, 2018
My 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).
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)
Thursday, October 25, 2018
The Long Term Care Community Coalition has released a report on promising practices for ALFs. Assisted Living: Promising Policies and Practices runs 52 pages and is divided into 13 sections, 4 of which focus on staffing. The introduction makes the case for why residents of ALFs are in need of stronger protections:
Assisted living facilities (ALFs) are increasingly viewed by seniors and their families as a desirable option for residential care, including for those in need of a nursing home level of care but who wish to avoid the institutional environment that typically defines life in a nursing home... Despite the billions of dollars in public funding every year, there are no federal rules governing the standards of care in ALFs. This lack of federal oversight not only means that care in ALFs is completely regulated by individual states, but also that, even when their needs and vulnerability are similar, ALF residents do not have a comparable right to quality care and quality of life that nursing home residents are entitled to under federal law.
In the absence of federal standards, ALF residents are only protected to the extent that individual states have developed regulatory requirements to ensure the safety and dignity of their residents. Unfortunately, according to a 2018 GAO report, Medicaid Assisted Living Services: Improved Federal Oversight of Beneficiary Health and Welfare is Needed, all too often states fail to protect ALF residents or even keep track of when they are harmed. The GAO found that there were an astonishing 23,000 reported cases of “critical incidents,” including abuse, neglect, exploitation, and death, in ALFs across just 22 states in 2014. While this number is significant, there is little doubt that the extent to which critical incidents and other problems occur is, actually, far greater, since only 22 of the 48 states surveyed by the GAO tracked and reported critical incidents. Moreover, the review only included Medicaid assisted living, which covers a small minority of ALF residents (most Americans pay privately for assisted living services). (citations omitted)
Each section includes best practices and recommendations with state specific examples. Check it out!
After you finish reading the report, check out the accompanying Assisted Living State Requirements Chart. Handy!
Wednesday, October 24, 2018
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
• 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)