Sunday, November 11, 2018

Living Life at the End of LIfe

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."

November 11, 2018 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care | Permalink | Comments (0)

Thursday, November 8, 2018

Call for Proposals-National Center for Victims of Crime

The National Center for Victims of Crime has released a call for proposals for its 2019 training institute. The website announcing the call for proposals explains:

The National Center is pleased to present the National Center for Victims of Crime 2019 National Training Institute. As in past years, this training will emphasize a multidisciplinary approach to sharing promising practices, current research, and effective programs and policies that are victim-centered, practice-based, and research-informed. Our National Training is a forum for law enforcement, victim service professionals, allied practitioners, policymakers, and researchers to share current developments and build new collaborations. Conference sessions will highlight practical information to better support services for the wide range of persons victimized by crimes of all types.

 Call for Workshop Proposals

The National Center for Victims of Crime is seeking presenters for its National Training Institute, to be held September 4-6, 2019, in Denver, Colorado. Workshops will address a wide range of topics organized into separate conference tracks. Workshops are scheduled for 90 minutes (1.5 hours) in length, unless otherwise specified in the proposal. Accepted presenters will be assigned day and presentation time by the Institute planning committee.

Click here  to submit a proposal.

November 8, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Programs/CLEs, State Cases, State Statutes/Regulations | Permalink | Comments (0)

8 Briefs-Financial Exploitation by Conservators

The National Center for State Courts project on  Elders & Courts, with other organizations have published  a series of 8 research briefs on Financial Exploitation by Conservators.  The topics include

  • Examples of Conservator Exploitation: An Overview
  • Conservator Exploitation in Minnesota: An Analysis of Judicial Response
  • Detecting Exploitation by Conservators – Court Monitoring
  • Detecting Exploitation by Conservators – Systemic Approach
  • Court Actions Upon Detection of Exploitation
  • Innovative Programs that Address Financial Exploitation by Conservators
  • Data Quality Undermines Accountability in Conservatorship Cases
  • Supporting Victims of Conservator Exploitation

as well as key resources for these cases.

The introduction explains the impetus for the work, the 8 briefs, definitions of common terms and the reason for the project

NCSC in 2016 estimated, based on projections, that there are approximately 1.3 million active adult guardianship or conservatorship cases in the United States and at least $50 billion in assets under conservatorships (see Data Quality Brief). Also in 2016, the U.S. Government Accountability Office (GAO) found that “the extent of elder abuse by guardians nationally is unknown due to limited data . . .” While many conservators are trustworthy, dedicated, and provide critically needed services, multiple media accounts over many years profile instances in which conservators have breached their fiduciary duty – taking advantage of those they were charged with protecting. (citations omitted)

 

November 8, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, November 5, 2018

A 22 Year Retrospective of Elder Abuse Prosecutions

Paul Greenwood, a rock star prosecutor known widely for his successes in elder abuse prosecution recently retired (huge loss for all of us).  He authored The Changing Landscape of Elder Abuse Prosecutions: A 22-Year Journey. He writes about the changes

Today prosecutors and law enforcement have an abundance of materials at their disposal to assist in the investigation and prosecution of criminal elder abuse cases. One such outstanding example is the newly released Elder Abuse Guide for Law Enforcement [EAGLE] operated by the National Center on Elder Abuse. Another great tool is the Elder Justice Initiative created by the Department of Justice.

The quandary that we face is not where to find the information but rather whether to make elder abuse prosecution a priority.

It is no exaggeration to say that elder justice is fast becoming a critical national issue. Demographics, availability of technology to seniors, the opioid epidemic, and the expanding number of dementia patients are just a few factors that have combined to create the perfect climate for predators. Elder abuse has been called the “crime of the 21st century”.

He writes about the upcoming challenges and steps prosecutors are taking to face them. Those preparations include trainings for prosecutors, in-state collaborations between prosecutors and state attorney generals, and multi-disciplinary teams.  Paul writes that two areas present hurdles:

  1. "Financial elder abuse is exploding and many of the perpetrators are able to hide in anonymity thanks to the proliferation of such internet ruses as romance, IRS, sweepstakes and grandma scams. Moreover, many exploiters are using nontraditional methods to steal from their elderly victim and then claiming that the transaction represents either a gift or a loan. We are having to find new ways to argue lack of consent aggressively and effectively and also educate ourselves as to the ways in which undue influence impacts this crime."
  2. "Secondly, we are still figuring out how to uncover, investigate and prosecute crimes – particularly sexual abuse – that occur in long term care facilities. Prosecutors need to reach out to the various state agencies that oversee the issuance and revocation of facility licenses along with the Long Term Care Ombudsman programs."

Paul Greenwood has done amazing things in advancing the prosecution of elder abuse cases. We all should thank him and wish him well as he moves to his retirement. Thank you Paul!

 

November 5, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, November 4, 2018

10 Commandments of Capacity

The ABA Commission on Law & Aging published its September-October newsletter, BIOFOCAL. The lead article is on  The Ten Commandments of Mental "Capacity" and the Law.

Recognizing the evolving state on the issue of capacity, the article explains 

[R]ecent changes have called the legal term “capacity” into question. The U.N. Convention on the Rights of Persons with Disabilities in Article 12 recognizes that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life” and that governments must take measures to assist individuals in exercising their capacity. The emerging principle of supported decision-making focuses on providing the needed support to help people make decisions. Finally, the 2017 Uniform Guardianship, Conservatorship and Other Protective Arrangements Act (UGCOPAA), approved by the Uniform Law Commission for adoption by state legislatures, does not use the term “capacity” – rather, it guides courts in determining whether there is a “basis” for the appointment of a guardian, taking into account needed supports and supported decision-making.

The article goes on to offer Ten Commandments:

1. presume capacity, 2. talk alone to the client, 3. make efforts to increase the client's abilities, 4. recognize there is no one "universal standard for assessing capacity", 5. lawyers shouldn't administer the mini-mental status exam, 6. remember it's capacity to do a specific task, 7. remember to examine the big picture, 8. keep the client's wishes, goals, etc. in the forefront, 9. remember client confidentiality and autonomy, and 10. remember the importance of advance planning.

 

 

 

 

November 4, 2018 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s | Permalink | Comments (1)

Thursday, November 1, 2018

Disaster Recovery Resources

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.

The Disaster Relief & Consumer Protection Project  offers information and resources in several categories. For individuals who are older, the resources address the following:

November 1, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Housing, Other, Programs/CLEs, State Statutes/Regulations, Webinars | Permalink

Wednesday, October 31, 2018

Dementia and Firearms

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.

 

October 31, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care | Permalink

Movies for Our Classes?

Periodically as elder law profs, we have shared ideas for videos that we might use in our classes.  It seems to me that it's been a while since we have done that, so I thought I'd share that I used the movie UP by Pixar recently in discussing property concepts regarding people who are older. I thought the first 15-20 minutes were good illustrations of aging in place, new urbanism, ageism, ADLs, crimes, stereotyping and even land use principles. Particularly the sequence that shows the husband and wife aging together is very compelling as the entire segment has no dialogue, yet the students completely know what was going on. 

Any of you elder law profs have movies you use in your classes?

October 31, 2018 in Consumer Information, Current Affairs, Film, Other | Permalink | Comments (2)

Monday, October 29, 2018

Elder Justice Coordinating Council-Save the Date

The next meeting for the Elder Justice Coordinating Council is December 6, 2018. The EJCC was created as part of the Elder Justice Act and is intended 

to coordinate activities related to elder abuse, neglect, and exploitation across the federal government. The Elder Justice Coordinating Council is directed by the Office of the Secretary of Health and Human Services and the Secretary serves as the Chair of the Council. The HHS Secretary has assigned responsibility for implementing the Coordinating Council to the Administration on Aging (AoA) within ACL. AoA has long been engaged in efforts to protect older individuals from elder abuse including financial exploitation, physical abuse, neglect, psychological abuse, and sexual abuse. Through the Older Americans Act, AoA endeavors preserve the rights of older people and protect those who may not be able to protect themselves.

The final 2018 meeting is set for December 6, 2018 from 9:30-noon. You can register here to attend.  It will also be live streamed.

October 29, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs | Permalink | Comments (0)

Law Students Attend Annual Meetings for LeadingAge and NaCCRA

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

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

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

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

Music to our ears, right Jack Cumming?  

October 29, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management | Permalink | Comments (1)

Sunday, October 28, 2018

Good Life in Later Years

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.

Good stuff!

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

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

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

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

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

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

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

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

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

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

Continue reading

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

Thursday, October 25, 2018

Change in Process to Appoint Administrative Judges

The Washington Post recently ran an article about changes to the system of selecting Veterans law judges (or ALJs) within the Board of Veterans Appeals and whether that is affecting their impartiality.  The story, I’ve never seen these positions politicized’: White House rejection of veterans judges raises concerns of partisanship is primarily about the rejection of candidates for positions within the Board of Veterans Appeals. This excerpt from the article gives you the background

The Board of Veterans’ Appeals has long filled a nonpartisan role in the federal government, run by dozens of judges charged with sorting through a thicket of regulations to determine whether an injured veteran is entitled to lifetime benefits.

But this summer, the White House rejected half of the candidates selected by the board chairwoman to serve as administrative judges, who make rulings on the disability claims. The rejections came after the White House required them to disclose their party affiliation and other details of their political leanings, according to documents viewed by The Washington Post.

Such questions had not been asked of judge candidates in the past, according to former judges and board staff.

As part of the process, the candidates were asked to provide links to their social media profiles and disclose whether they had ever given a speech to Congress, spoken at a political convention, appeared on talk radio, or published an opinion piece in a conservative forum such as Breitbart News or a liberal one such as Mother Jones, according to one candidate, who requested anonymity because the person is not authorized to speak to the media.

The article quotes an administration official who explained that this is designed to get the best people for the job. But remember another change that happened this summer, about which we previously blogged. "The new approach at VA comes as the White House for the first time turned another class of administrative judges from civil servants into political appointees, reflecting an emerging conservative legal movement to involve the president in naming government adjudicators... Citing a Supreme Court decision, the Trump administration announced in July that administrative law judges, most of whom rule on disability claims for the Social Security Administration, would now be appointed by the president." The rest of the article examines the caseload of veterans appeals and the need for judges for the appeals system.

October 25, 2018 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Social Security, Veterans | Permalink | Comments (0)

Celebrating Volunteer Lawyers in Elder Law

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.
 
Great to see someone who is unretiring in retirement!  Congratulations on this well-deserved recognition and thank you for the inspiration.   For more good news, read "A Time to Celebrate Our Best," from the Michigan Bar Journal, October 2018. 

October 25, 2018 in Consumer Information, Current Affairs, Legal Practice/Practice Management | Permalink | Comments (0)

New Report: ALF Promising Practices

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!

October 25, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 24, 2018

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

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

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


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


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


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

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

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

Tuesday, October 23, 2018

Life Begins at 65?

Kaiser Health News ran a story,  Who Knew? Life Begins (Again) At 65. The article focuses on what to do once one turns 65, and even offers a "playbook"

  • Consider enrolling in Medicare Part A, to cover hospitalization expenses....
  • Double up on checkups....Starting at age 65, [doctor] visits should last longer than the standard 20 minutes — so older patients have time to discuss what’s on their minds. Older patients who do this regularly tend to require “minor tweaks” instead of major repairs ....
  • Schedule annual visits to the dermatologist, ophthalmologist — and visits every five years to the gastroenterologist. 
  • Take the leap and sign up for long-term health insurance....  
  • Stick to a vaccine regimen. Vaccines are important again....
  • Evaluate your diet....
  • Bone up on Social Security....
  • Challenge your financial plan..... 
  • Serve your community [by volunteering]....
  • Stay active....
  • Stay flexible....
  • Look to the future....
  • Get your paperwork in order....
  • Stay connected....

 

 

October 23, 2018 in Consumer Information, Current Affairs, Other | Permalink | Comments (0)

Justice Sandra Day O'Connor's Courage

My father and Sandra Day O'Connor happen to have many moments in common.  My father and Sandra both grew up in the deserts of Arizona.  They both practiced law in Phoenix.  Indeed, they even shared the same birthday, although my father was a few years older and passed away in 2017.  They socialized in the same circles and their spouses were friends with each other as well.  

Now they share one more event, and that is the personal experience of dementia.  My father, who had already stepped down as a federal judge at the district court level before he was diagnosed, never really accepted the diagnosis.  I think the disease sometimes robs the individual of understanding.  I admire Justice O'Connor and her family for the public announcement they made this week, disclosing her diagnosis of dementia, most likely of an Alzheimer's type.  

All best wishes, to the whole O'Connor family.   As one news story reminds us, there are an estimated 5.7 million Americans with Alzheimer's Disease and almost two-thirds of them are women.  

October 23, 2018 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Statistics | Permalink | Comments (0)

The Need for Fiduciary Service Organizations

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

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

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

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

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

 

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

 

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

 

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

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

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

Monday, October 22, 2018

Medicare for All in the 2018 Midterms

Medicare for All is gaining more attention as more candidates for office are including that in their platforms for the 2018 midterms. Kaiser Health News ran this article, Politicians Hop Aboard ‘Medicare-For-All’ Train, Destination Unknown.  According to the article, starting primarily with Senator Sanders in his run for president, it seems that many are now using Medicare for All in their platforms, but do we really know what it entails?

After decades in the political wilderness, “Medicare-for-all” and single-payer health care are suddenly popular. The words appear in political advertisements and are cheered at campaign rallies — even in deep-red states. They are promoted by a growing number of high-profile Democratic candidates, like Alexandria Ocasio-Cortez in New York and Rep. Beto O’Rourke in Texas.

Republicans are concerned enough that this month President Donald Trump wrote a scathing op-ed essay that portrayed Medicare for all as a threat to older people and to American freedom.

It is not that. But what exactly these proposals mean to many of the people who say they support them remains unclear

Are we using single payer and Medicare for All interchangeably? Appropriately? What do we even mean?  "In precise terms, Medicare-for-all means bringing all Americans under the government’s insurance program now reserved for people 65 and over, while single-payer health care would have the government pay everyone’s medical bills. But few politicians are speaking precisely."

The article explains that in polling, health care concerns rank right up there at the top, but there doesn't seem to be one unified plan supported by everyone. But then, there is an important part of the message that may not be absorbed by voters-the potential for tax increases. The article focuses on other alternatives used to provide health care for everyone, in countries such as the U.K. and Canada, which are very close to single-payer systems. The article also notes the impact on jobs if the US were to move to a single-payer system.

Some candidates do offer specifics but others don't. How important are the details at this point? You may be surprised:

[One] pollster ... suggested that policy details simply aren’t as relevant in a midterm year and that for now we shouldn’t expect a candidate’s support for Medicare-for-all to be anything more than a way to signal his or her values. But she suggested that will change in the run-up to 2020, adding, “When we head into the presidential election, people will probably be pickier and want more details.”

That gives politicians and voters a few years to decide what they mean and what they want when they say they support Medicare-for-all or single-payer health care. For now, it’s hard to read too much into promises.

 

October 22, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare | Permalink | Comments (0)