Wednesday, October 30, 2019
The D.C. Bar recently released a new ethics opinion addressing the obligations when an attorney becomes impaired. Ethics Opinion 377 Duties When a Lawyer is Impaired starts by explaining
The District of Columbia Legal Ethics Committee has examined the ethical duties of partners; other managerial or supervisory lawyers and subordinate lawyers; and non-lawyer employees to take appropriate measures when they reasonably believe another lawyer in the same law firm or government agency is suffering from a significant impairment that poses a risk to clients.1 A related question involves the duties owed to clients and the profession when an impaired lawyer leaves a law firm or government agency, particularly when the lawyer may continue to practice law, regardless of whether clients are, or may be, terminating their relationship with the firm in order to remain clients of the departing lawyer.
This Opinion deals only with mental impairment, which may be a chronic or temporary condition arising out of or related to age, substance abuse, a physical or mental health condition or other circumstance affecting the lawyer. This Opinion supplements the guidance contained in Legal Ethics Opinion 246, with a specific focus on the issue of impaired lawyers, whose conduct may or may not trigger mandatory reporting obligations under the Rules, as discussed herein. This Opinion also relies, in part, upon ABA Committee on Ethics and Professional Responsibility Formal Opinion 03-429 (2003).
The impairment of a lawyer may fluctuate over time, regardless of its cause. However, if a lawyer’s periods of impairment are on-going or have a likelihood of recurrence, then partners, or other lawyers with managerial or supervisory authority may have to conclude that the lawyer’s ability to represent clients is materially impaired.
A range of ethics rules are implicated, including those setting forth the duties owed by lawyers to clients and the profession, and those addressing issues of supervising lawyers and non-lawyer employees. At the outset, and as discussed within this opinion, the Committee recognizes that there are tensions between ethical duties that arise under the D.C. Rules of Professional Conduct (the “Rules”) and requirements or prohibitions that may exist under the substantive law, specifically with respect to employee privacy and other rights. Lawyers and law firms must be cognizant of the legal landscape in which these difficult issues occur.
Mental impairment may lead to an inability to competently represent a client as required by Rule 1.1, to complete tasks in a diligent and zealous manner as required by Rule 1.3, and to communicate with clients about their representation as required by Rule 1.4.
Rule 5.1 requires partners or other lawyers with managerial or supervisory authority to make reasonable efforts to ensure that all lawyers and those under their supervision comply with the applicable Rules and to ensure that their law firm or government agency has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules. These provisions require managerial or supervisory lawyers who reasonably believe or know that a lawyer is impaired to closely supervise the conduct of the impaired lawyer because of the risk of violations of the Rules and resulting harm to clients. Rule 5.2 may also apply to subordinate lawyers if they know of and ratify the conduct of the impaired lawyer.
Rule 8.3 requires a lawyer, regardless of managerial or supervisory authority, to report an impaired lawyer to the appropriate professional authorities including, but not limited to, the District of Columbia Office of Disciplinary Counsel,if the impaired lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law, unless such disclosure would be prohibited under the duty of confidentiality owed to clients under Rule 1.6 or other law.... Further, if the firm or government agency removes the impaired lawyer from a matter, it may have an obligation under Rule 1.4 to discuss with the client the change in staffing on the matter. The duty to discuss removal of government lawyers from a matter may be different because of government policies or regulations.
If the impaired lawyer resigns, is removed or otherwise leaves the law firm, the firm may have additional disclosure obligations under Rule 1.4 to clients who are considering whether to remain with the firm or to transfer their representation to the departing lawyer. However, the firm should be cautious to limit any disclosures to necessary information permissible to disclose under applicable law. The obligation to report misconduct under Rule 8.3 is not eliminated if the impaired lawyer leaves the firm.
Beyond the ethical obligations embodied in the D.C. Rules, a fundamental purpose of identifying and addressing lawyer impairment is to encourage individuals who are suffering from mental impairment to seek and obtain assistance and treatment. This purpose should not be forgotten as lawyers, firms and agencies seek to comply with the ethical mandates discussed herein. (citations omitted)
The lengthy discussion examines the duties of others who supervise or have some managerial duties, as well as the duty to report. It concludes that:
In circumstances where a law firm or government agency addresses the issue of an impaired lawyer, there is a crucial balancing between protecting the interests of the clients and properly discharging the law firm or government agency’s obligations to protect the privacy of the lawyer under substantive law. Having appropriate policies and procedures designed to encourage reporting and to address issues of impairment within the law firm or government agency are important steps in ensuring that an impaired lawyer does not violate the Rules and that partners, and managerial and supervisory lawyers properly discharge their duties under the Rules.
Tuesday, March 12, 2019
Mark your calendars for this important webinar. The National Center for Law and Elder Rights is offering this webinar, Elder Abuse: Mandatory and Permissive Reporting For Lawyers, on April 3, 2019 from 2-3 edt.
Here is the info about the webinar
When working with older adults, lawyers may be faced with legal and ethical decisions about when and how to report suspected elder abuse. In making these decisions, lawyers must balance the ethical need to honor their client’s autonomy, with potential legal requirements to intervene. An understanding of mandatory and permissive reporting laws is essential for lawyers working in this field.
This webcast will introduce lawyers to the concept of mandatory and permissive reporting, and provide an overview of the analysis a lawyer should take when determining how to proceed in circumstances of suspected abuse. Participants will learn how to:
• Analyze reporting obligations
• Determine who is a mandatory reporter in their state
• Inform clients about mandatory reporting requirements
• Weigh the benefits and burdens of reporting
The webcast will build on previous NCLER trainings, including Legal Basics: Elder Abuse and Legal Basics: Signs of Elder Abuse, Neglect, and Exploitation.
To register, click here.
Thursday, January 10, 2019
This is the time of year when students stop by to chat. Perhaps they are first year students who want to talk about exame, or grades or class rank. But more often for me, it is students who want to talk about how to get into elder law.
Along that line, a short article written by experienced attorney Monica Franklin, a CELA in eastern Tennessee, is helpful. She begins with some values questions -- such as "do you have a social worker's soul and a nurse's curiosity?" She points to the different subject matters that can be addressed under the heading of "elder law," from what she calls the meat and potatoes of estate planning, probate and conservatorship, to th more complex areas of "public benefits, health care advocacy, and special needs trust" planning.
She recommends resources, including accreditation courses offered by the National Elder Law Foundation, cautioning that she personally found the certification exam to be "more difficult than the bar exam." But she makes it clear she also found certification worthwhile, both as a goal to increase her own knowledge base, and because the recognition that attends status as a Certified Elder Law Attorney helps her practice base.
In her own state of Tennessee, she recommends becoming familiar with the Tennessee Justice Center, a "nonprofit law firm that has served vulnerable families since 1995." Is there a similar specialized practice in your own region?
Ms. Franklin concludes that her own state "needs more qualified elder law attorneys. It is a field where governmental actors often misinterpret the law to the detriment of our most vulnerable citizens: older adults and individuals with disabilities."
For more, see So, You Want to Be an Elder Law Attorney (available on Westlaw and behind a registration firewall), published in the Tennessee Bar Journal, February 2018.
Wednesday, December 19, 2018
The more I work in the field of elder law, and teach classes, the more I am convinced that enterprises who market to families and seniors fail to realize greater transparency can help their commercial products and enterprises succeed.
Thus, it is useful to read a New York Times' column on annuities, one that appears to be the first of a series. The author, Ron Lieber, begins his column on The Simplest Annuity Explainer We Could Write:
Annuities can be complicated. This column will not be.
After I wrote two weeks ago about getting tossed out of the office of an annuity salesman, there was a surprising clamor for more information about this room-clearing topic. One group of readers just wanted a basic explainer on how annuities work. For that, read on.
Another group of readers worried that those hearing of my experience might assume that all annuities are bad, and that all people who sell them use subterfuge to do so. Neither of those is true: Next week, I’ll introduce you to some reasonable people who are trying to use certain annuities in new and improved ways.
My thanks to Dickinson Law colleague Laurel Terry for the heads up!
Tuesday, December 18, 2018
The DC Bar is offering a CLE program on "Faultlines and Eruptions: Legal Ethic in Perilous Times." Here are some of the included topics:
Widespread discord in our current culture places unusual stress on professional ethics, and –
unfortunately – the legal profession is not immune. The past year saw many legal professionals, including famous names in the law, make questionable decisions and breach legal ethics standards, providing both cautionary tales and fodder for analysis. This challenging and interactive class will explore important developments and looming perils that every lawyer should be ready to face.
- Legal ethics for "fixers"
- Direct adversity vs. "general adversity," and whether it matters
- Sexual harassment as a legal ethics problem, and the profession's vulnerability to "The King's Pass"
- Defying a client for the client's own good
- Fees, referrals, and gaming the rules for fun and profit
- Professional responsibility vs. legal ethics
- The increasing threat to law firm independence and integrity
- The technology ethics earthquake
All topics seem relevant to today's "interesting" times.
Thursday, December 6, 2018
The Kansas Supreme Court released a lengthy disciplinary opinion on November 30, 2018 that concerns, among other things, excessive fees. The case, In re: Crandall, resulted in a 6 month suspension. The opinion is available here. The Kansas Supreme Court addressed several procedural issues in its opinion. As far as fees, the court found that "testimony provides clear and convincing evidence and establishes that the representation of [clients] was straightforward and did not require the time and labor needed to justify the amount ... charged." The opinion goes step-by-step through the provisions of Rule 1.5(a) criteria to determine reasonableness of a fee. The Court found that there was clear and convincing evidence that the attorney had violated Rule 1.5. The opinion also examines other issues and concludes "that the fees in two cases were unreasonable in violation of KRPC 1.5(a) and that [the attorney] violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice)."
Wednesday, December 5, 2018
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)
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)
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
A friend sent a good news story today. Charles "David" Jones has received a top award from the State Bar of Michigan -- the John W. Cummiskey Pro Bono Award -- for his service to older clients in that state as a volunteer working under the auspices of Elder Law of Michigan.
The numbers are staggering. Since first volunteering with Elder Law of Michigan in 2013, Charles "David" Jones has helped approximately 900 seniors with their legal issues and donated nearly 2,000 hours of his time to the effort. It's pretty remarkable stuff for a guy who helps out a couple of days a week.
Jones isn't just an asset to the clinic's clients, who often can't afford legal services and need help with creditors, Medicaid and Medicare issues, and landlord-tenant disputes. He's also a terrific resource for Elder Law of Michigan, sharing his knowledge and expertise with staff members and volunteers.Jones's diligence and the sheer number of cases he's handled have been a boon to Elder Law of Michigan. As a private nonprofit organization with a limited budget, his efforts free up other volunteers to take on cases that may otherwise fall by the wayside. In 2017, Elder Law of Michigan assisted more than 4,700 clients.“Without David, these seniors may not have had access to any legal service,” wrote Jadranko Tomic Bobas, Elder Law of Michigan managing attorney, in his letter supporting Jones's nomination. “Getting legal advice from experienced attorneys ... empowers *19 and improves seniors' economic security and provides them with much-needed peace of mind.”
Jones was an administrative law judge for the Michigan Administrative Hearing System from 1996 until his retirement in 2013. Before that, he was an administrative law judge for the Department of Health and Human Services for nearly 20 years and spent just under two years as a staff attorney for Legal Aid of Western Michigan.
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)
Thursday, September 27, 2018
Recommended reading! The Rhode Island Providence Tribute published a series of in August and September 2018 that flow from a student journalism project at Brown University in Rhode Island. The team of students conducted an investigation over the course of a year, looking for the outcome of elder abuse allegations in the state. What they found were plenty of arrests but very few successful prosecutions.
Over two semesters, four student reporters pulled hundreds of court files and police reports of people charged with elder abuse to explore the scope of the problem and the way law enforcement and prosecutors handle such cases. In addition, the reporters used computer data purchased from the Rhode Island judiciary to track every elder-abuse case prosecuted in Rhode Island’s District and Superior courts over the last 17 years.
The student project, sponsored by a new journalism nonprofit, The Community Tribune, was overseen by Tracy Breton, a Brown University journalism professor and Pulitzer Prize winner who worked for 40 years as an investigative and courts reporter for The Providence Journal.
As part of the year-long investigation, the students analyzed state court data to evaluate how effective Rhode Island has been at prosecuting individuals charged with elder abuse. This had never been done before — not even the state tracks the outcomes of its elder-abuse cases. The data, based on arrests made statewide by local and state police, was sorted and analyzed by a Brown University graduate who majored in computer science.
The investigation found that 87 percent of those charged with elder-abuse offenses in Rhode Island over the 17-year period did not go to prison for those crimes. Moreover, fewer than half of those charged were convicted of elder abuse. This left victims in danger and allowed their abusers to strike again and again.
The above excerpt is from the first article documenting the students' amazing investigation. I definitely recommend reading the following articles. Caution: there is a paywall that appears after you open some number of articles on the Providence Tribune website, so if you aren't in the position of being able to pay for all the articles, you may want to prioritize the order in which you "open" the individual parts.
Part 6 is somewhat different, as it tracks the "successful" prosecution of a court-appointed guardian who pled "no contest" in 2015 to charges of embezzling money from an 80-year old elderly client. The embezzlement scheme allegedly involved false claims for services and double-billing. According to other news sources, the guardian, an attorney who was eventually disbarred in connection with her plea, was required to pay more than $130k in restitution and serve 30 months of home confinement in lieu of a "suspended" sentence of seven years in prison.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Tuesday, September 25, 2018
Last weekend, Penn State's Dickinson Law held our annual alumni weekend, combined with a convocation ceremony for first year law students. I also happened to attend a non-law school function. In breaks during scheduled events, I had time to chat with alums and friends and by the end of the weekend, I realized there was a bit of theme to my conversations the last few days. In several of the conversations, someone described to me scenarios where an older individual had become involved with a new friend or a new caregiver, or a long-lost family member and was "allowing" that third person to take advantage of them, usually in the form of monetary gifts or "loans," that would never be repaid.
As we talked, I think we mostly agreed that one possible motivating factor for the older person was some level of fear, and not fear of the third person, but fear of being alone. The exploitive behavior was tolerated because it was apparently preferable to being alone, or worse, being compelled to living in the dreaded nursing home.
Another analysis I heard, but was less willing to agree with, was the lament, "what can you do, because X is competent and he has a right to give away his money if he wants to do so?"
In one example, the elderly person removed all of his life savings from a long-time professional money manager and placed the assets with a "new" manager, all because the new manager promised to charge "no" management fees. The new manager held no licenses or professional qualifications. A few months later, the client passed away -- and the new manager turned out to be the sole beneficiary of the estate.
In another instance, the observation about competency or capacity was made about an older person over the course of several months, even as that person became more and more entangled with seemingly opportunistic "befrienders" who were viewed as untrustworthy by others. Several weeks after the man seemed to disappear, his body was found in a shallow grave, while someone was still accessing his Social Security income. A pretty dramatic end to that story of misplaced trust.
My question: How is it that we all tend to emphasize that the older person was competent -- or appeared to have capacity -- even as there is also evidence he or she is trusting the wrong persons?
What I have learned from working with neuropsychologists is that so-called mini-mental exams used by primary care physicians do not necessarily evaluate an important, core component of capacity, a person's ability to exercise judgment in a sound way. Some screening tools tend to focus on cognitive components that are more easily evaluated through a brief exercise, such as asking the individual to perform exercises that tend to focus on short-term memory or even delayed-recall abilities. This is important because one aspect of judgment is the ability or inability to evaluate risk. Impaired judgment is viewed as an executive dysfunction or impairment, but it can exist without (or with only modest) memory impairment. Plus, impaired executive function can also be associated with lack of awareness or denial that there is a problem.
The significance of loss of executive function has been tracked by legal practitioners, such as Patterns in Cases Involving Financial Exploitation of Vulnerable Adults (2014 Michigan Bar Journal). On the important differences in screening tests used, see also Assessing Executive Dysfunction in Neurodegenerative Disorders: A Critical Review of Brief Neuropsychological Tools, published November 2017 in Frontiers in Aging: Neuroscience.
September 25, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Legal Practice/Practice Management | Permalink | Comments (0)
Wednesday, September 12, 2018
Last week, students in my Elder Law class at Dickinson Law had the benefit of a fascinating, detailed presentation by Pennsylvania's Deputy Commissioner of Insurance Joseph DiMemo about the history of insolvency for Penn Treaty American Network and American Independent Insurance Company as sellers of long-term care insurance policies. In 2009, the State took the reins as the receiver for the two companies' administration of more than 126,000 policies sold nationwide.
From the history, I would summarize reasons for failure of long term care insurance in its "traditional" form as including the following:
- Selling products with a promise or at least a strong expectation of level premiums, especially in the early years of the industry. While contract language permitted companies to seek rate increases, the companies often delayed asking for increases or were frustrated by states that refused to grant requested increases;
- Assumptions made about "lapse" rates for policyholders that proved to be inaccurate;
- Assumptions made about "interest" rates for invested premiums that proved to be inaccurate, even before the 2008-10 financial crisis;
- Assumptions made about lower morbidity and higher mortality that proved not to be accurate for policyholders overall;
- The continued use of invalid assumptions about future premium rate increases.
In light of this tour through history, I was interested to read about New York LIfe Insurance Company's description of its "new and innovative long-term care insurance product" in its press release dated September 5, 2018:
A new long-term care solution announced today by New York Life, NYL My Care, promises to make the purchase of long-term care insurance simpler and more affordable. The innovative product features design concepts familiar to purchasers of other types of insurance, including a deductible and co-insurance, and offers the benefit of a dividend, which can help offset future premiums. NYL My Care clients will also benefit from the peace of mind that comes from working with a mutual life insurance company with the highest available financial strength ratings.
“New York Life is committed to helping people plan for the future, which includes protecting themselves and their loved ones from the financial burden of an extended health care event,” said Aaron Ball, vice president, New York Life Long-Term Care. “NYL My Care’s simpler, first-of-its-kind product design will help more people understand, access and afford the protection they need against the potential cost of long-term care.”
NYL My Care covers a wide range of long-term care needs, including home care, community-based care and facility care, and offers four pre-designed plan levels ... bronze, silver, gold and platinum.
For more on so-called "hybrid" or "asset" based products that couple long-term care benefits to annuities or life insurance polices, read New Life Insurance Brings New Innovations to Long-Term Care Insurance Market from Forbes.
September 12, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Tuesday, September 11, 2018
I'm preparing for an upcoming program in North Carolina and residents of senior living communities have sent me questions in advance. The questions I've received are a reminder that "transparency" is a big issue. As one resident candidly explained, "No population is more vulnerable than seniors living in managed care.... I consider myself among the vulnerable." I've come to believe that lack of transparency impacts virtually all of the options for financing of senior living, including long-term care insurance and continuing care communities. The problem is that many prospective clients do not know who they can trust, and many end up trusting no one. They end up not making any advance plan.
For example, this week there is industry-sourced news that 33 facilities operated under the umbrella of Atrium Health and Senior Living, a New Jersey-based company, are going into receivership. These include 9 "senior living communities" and 23 "skilled nursing facilities" in Wisconsin, plus a skilled nursing facility in Michigan. Atrium is also reported as operating 3 senior living communities and 9 skilled nursing facilities in New Jersey that "are not part of the receivership." If you look at the company's website today, however, it won't be easy to find news that insolvency is already impacting this company's sites. At least as of the time of my writing this blog post, there's only "good news" on the company's website.
The public tends not to distinguish between different types of senior living options, at least not until individuals get fairly close to needing to make choices about moving out of their own homes. I can easily imagine anyone who has done enough advance research to know about troubled companies to simply make a decision to steer clear of all facilities operated under a particular company name. But, I suspect there is also a much larger population of prospective residents who view reports of troubled senior living companies or facilities as a reason to reject all of the options.
Some providers will say that the problem is that "bad news" is over-reported. I don't think that is actually true. Rather, I think that there in most states is it hard to distinguish between financially sound or unsound options. Certainly, I've known state regulators who decline to talk about troubled properties on a theory that bad news may make it harder for struggling operations to work out their problems as they cannot attract new customers. Lack of transparency is argued as an explanation for giving operators a fair chance to recover, and recovery helps everyone.
States, however, have unique opportunities to learn from their roles as receivers for troubled operations. Wouldn't it be helpful for states to publish accurate information about what factors they have discovered that contribute to success or lack of financial success? And if not the regulators, why not have the industry itself publish standards of financial health.
September 11, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Legal Practice/Practice Management, Property Management, Retirement, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Wednesday, August 22, 2018
I'm giving a big sigh as I begin to type this particular blog post. I hate the topic of thieving lawyers, and especially those who hold themselves out as elder law professionals. But, I also can't ignore the topic. I keep a notebook of news articles and bar association disciplinary cases on elder abuse involving lawyers and although certainly the bad apples are a tiny fraction of the profession, my notebook is growing.
The latest news comes from New Jersey, where a high profile lawyer -- who hosted a radio show and taught seminars on elder law -- pleaded guilty in late July in state court to stealing "millions" from clients. Robert Novy, 66, faces sentencing on September 28, and the AG recommends 10 years in state prison.
In some ways Novy's history mirrors other cases I've followed more closely in Pennsylvania, as it began with him placing client funds into his firm's trust accounts, accounts which are usually meant to be a temporary spot for use in future client-directed transactions. At some point he then proceeded to transfer the funds to his own operating accounts, in direct violation of statutory and ethical rules. Also, counterintuitively, his "mature" age and experience are something I've seen with other attorney fraud cases in Pennsylvania. Were they always bad apples or did they just stay too long in the bin? The histories often seem to begin with the lawyer's "promise" to invest the funds for clients, relying on long-years of practice as a sign of reliability, even though, generally speaking, lawyers probably aren't the best source of investment advice. In fact, the Pennsylvania Supreme Court adopted new rules in 2014 that placed restrictions on attorneys' involvement in "investment products."
In another way, Novy's history is unusual. I've found that most of the big ticket thefts by attorneys from older clients involve sole practitioners. They seem like lone wolves, operating without traditional checks and balances. Novy, who called his firm Robert C. Novy & Associates, had other attorneys in the firm. Sadly, it seems that Novy may not have been operating solo in his fiduciary crimes, as an "associate" attorney who had also been practicing law for many years was charged with similar crimes involving client funds. I could not find the outcome of those charges, or whether the charges are still pending.
In these New Jersey cases, the charges date back to 2015 and 2016. I suspect delays in bringing the cases to trial or plea may be tied to efforts to "permit" the lawyers some opportunity to repay the defrauded clients by liquidating their personal assets; ultimately, however, going forward with the criminal charges (rather than "mere" disciplinary sanctions) suggests the reimbursement opportunity was unavailing.
Friday, August 10, 2018
Filial Friday: N.D. Nursing Home's Claim Against Adult Children for Father's Unpaid Bills Set for September Trial
According to news reports, here and here, three siblings are facing a September 2018 trial date after being sued by a North Dakota nursing home for more than $43,000 in unpaid costs of care for their father, incurred during a seven month stay at the facility. The children maintain they have no contractual obligation with the nursing home, and were not involved in their father's application for Medicaid, nor did they receive disqualifying gifts from their father. A denial of a Medicaid application can arise if there is an uncompensated transfer of assets within a five year look back period, or because of certain other unexplained failures to use the father's "available" resources to pay for his care.
A North Dakota's statute, N.D.C.C. Section 14-09-10, with language that can be traced back to filial support laws of Elizabethan England, provides:
It is the duty of the father, the mother, and every child of any person who is unable to support oneself, to maintain that person to the extent of the ability of each. This liability may be enforced by any person furnishing necessaries to the person. The promise of an adult child to pay for necessaries furnished to the child's parent is binding.
One news report quotes the executive director of the North Dakota Long Term Care Association, Shelly Peterson, as saying nursing homes use the law to go after adult children in only one circumstance: "When parents transfer income or assets to their children, and then the parents don't qualify for Medicaid." The director is reported as further contending that "facilities are 'legally obligated' under Medicaid to pursue every avenue possible to collect that debt, including suing, before they can get reimbursed from the state Department of Human Services for a debt that cannot be recovered."
According to some sources, local legislators, aroused by this suit, are looking at whether North Dakota should continue to permit nursing home collections under North Dakota's indigent support law. Such laws have been blocked or repealed in most other U.S. states. North Dakota and my own state, Pennsylvania, are the two most notable exceptions.
My reaction to the news articles on this case is "something doesn't add up here" and some key facts seem to be missing.
- First, if the father was in the nursing home for 7 months, who did the children think was paying for his care? I can't imagine no one in the family asked that question for that period of time (although certainly Medicaid applications can take time to process and perhaps the denial came in after the father's death).
- What was the basis for any denial for Medicaid? I've seen Medicaid denied for inability of the applicant (or applicant agent) to track down some old resource, such as a demutualized life insurance policy. Also, what is the source of the contention that Medicaid law "requires the facility to sue" to collect the debt? I'm not aware of any such rule at the federal level.
- Is there another member of the family involved in the application -- someone other than the three target children -- or is there another family member involved in any "transfers" causing an alleged ineligibility period? In the U.S., filial support laws don't prioritize collection, nor require recovery from so-called "bad" children, rather than more "innocent" children.
- Finally, why weren't there care planning meetings with the family that included discussions of costs of care? It always raises a red flag for me when the "first" alleged notice of such a claim arises after the death or discharge of a resident.
Perhaps we will hear the results of the trial or any settlement, and thus hear a more complete picture of how these bills came to accumulate.
August 10, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (1)
Thursday, July 26, 2018
On May 9, 2018, the Pennsylvania Supreme Court approved Pennsylvania Rule of Disciplinary Enforcement 403, recognizing an emeritus status for attorneys who retire from the practice of law and seek to provide pro bono services to legal aid organizations.
Emeritus programs serve as a pool of qualified volunteer attorneys to provide services to those in need. Emeritus attorneys can perform valuable roles in the community by bolstering legal aid and other nonprofit programs to help close the gap between the need for and the availability of free legal services.
In order to transfer to emeritus status in Pennsylvania, an attorney must be on retired status. The retired attorney must complete six hours of continuing legal education within one year prior to the application date as a prerequisite to transferring to emeritus status. The emeritus applicant must verify that he or she is authorized solely to provide pro bono services, is not permitted to handle client funds, and is not permitted to ask for or receive compensation. At the time of application, the applicant must pay a registration fee of $35.
Emeritus attorneys can renew their status on an annual basis, paying an annual fee, or can "transfer back" to retired status. While on emeritus status, they are subject to annual continuing legal education requirements.
Pennsylvania doesn't tend to rush to adopt "new" ideas, and thus it is relatively late among the states to approve such a program. Emeritus programs have existed for quite some time. For more on them, see the white paper on "Best Practices and Lessons Learned," authored for the ABA in 2010 by David Godfrey and Erica Wood. See also the 2016 updated report by David Godfrey and April Faith-Slaker.
Monday, June 11, 2018
My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of GPSolo, the ABA journal for solo, small firm, and general practitioners. Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns. I enjoyed her use of classic lines from the movie Jaws.
My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).
Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.
Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.
Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.
June 11, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, June 7, 2018
A recent issue of the Michigan Bar Journal offers interesting practitioner perspectives on disability law and elder law issues. The January 2018 issue includes:
- Elder Bankruptcy
- Coordinating Representation: How Business and Elder Law Counsel Can Work Together to Meet Clients' Needs
- The Impact of Aging on Consumer Law
- The Intersection of Estate Planning, Family Law, and Elder Law
- Significant Regulatory Changes for Social Security Disability Insurance and Supplemental Security Income
- Considerations When Settling a Lawsuit for an Individual Lacking Legal Capacity or a Minor
Introducing the theme of the issue, attorney Christine Caswell writes:
While there may be a perception that the section focuses on helping clients qualify for public benefits, its mission is actually much broader. Elders and those with disabilities have many of the same issues as the rest of the population— divorce, consumer problems, bankruptcy, business ownership, and litigation—but these issues are magnified when questions arise concerning competency, the need for ongoing care, and discrimination. Moreover, these different legal areas may conflict when determining what is in the best long-term interests of these clients.
June 7, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, Legal Practice/Practice Management, Medicaid, Medicare, Social Security, State Cases, State Statutes/Regulations | Permalink | Comments (0)