Tuesday, June 2, 2020
For more than ten years it is probably fair to say that the most ubiquitous appellate "elder law" cases are those involving attempts by nursing homes to compel arbitration, rather than court-based litigation, usually raised as a defense to personal injury suits brought by residents or family members of residents. Admission contracts routinely include mandatory arbitration clauses. Arbitration is often promoted by nursing homes to prospective customers as offering efficient, cost-effective resolution for any disputes; however, seasoned attorneys also know that limiting disputes to arbitration is a means by which care-providers avoid trials by jury, publicly reported trials, and most court-based rules on procedure, rights to discovery and admissibility of evidence.
This month, a California appellate court (Second District, Division 6) ruled that residents of continuing care communities are protected because of California laws interpreted as prohibiting mandatory arbitration in "rental agreements." From the June 1, 2020 opinion in Harris v. University Village Thousand Oaks, CCRC, LLC:
Civil Code section 1953, subdivision (a), states, “Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy: [¶] ... [¶] (4) [Their] procedural rights in litigation in any action involving [their] rights and obligations as a tenant.”
... The plain language of Civil Code sections 1940 and 1953 applies to the continuing care contracts here because the fees paid by appellants include payment for the right to live in a residence. Appellants are thus “persons who hire dwelling units.” (Civ. Code, § 1940, subd. (a).) Thus, the protections for “boarders” and “lodgers” (Civ. Code, § 1940, subd. (a)) apply to the “board, or lodging” portions of continuing care contracts (Health & Saf. Code, § 1771, subd. (m)(1)). Because the allegations in the complaint here include claimed violations of “rights and obligations as a tenant” (Civ. Code, § 1953, subd. (a)(4)), the arbitration agreements are void.
The court discussed the reasons legislatures enacted statutory laws to "protect the rights of tenants." It continued:
Elders entering continuing care contracts are entitled to the same protection as mobile home owners. Both groups face significant economic barriers to relocating. The Legislature recognizes that “elderly residents often ... expend a significant portion of their savings in order to purchase care in a continuing care retirement community,” and that there is a need “to protect the rights of the elderly.” (Health & Saf. Code, §§ 1770, subd. (b), 1776.)
The court acknowledged that CCRC residents also have some express statutory protections under state laws regulating CCRCs, but concluded that the lack of any bar on arbitration in that statutory scheme does not preclude protection for residents under landlord-tenant law.
Moreover, the continuing care contract statutes “shall be liberally construed for the protection of persons attempting to obtain or receiving continuing care.” (Health & Saf. Code, § 1775, subd. (e). To deny residents of a continuing care retirement community the protection given others who contract for lodging would be inconsistent with this express policy. The legislative purposes of both the landlord-tenant laws and the continuing care contract laws are best served by applying the arbitration prohibition to the housing component of continuing care contracts.
The full opinion is currently available on Westlaw at 2020 WL 2831923.
Monday, May 18, 2020
In 2011, Joshua R. Wilkins, then a graduating student at Dickinson Law, won one of the top awards for a student writing competition sponsored by the National Academy of Elder Law Attorneys (NAELA). Joshua wrote about "Consumer Directed Negotiated Risk Agreements." His introduction began:
Negotiated risk in the assisted living context is a largely misunderstood concept. Opponents and proponents of the concept often fail to agree on fundamental concepts underlying negotiated risk. Similarly, states have enacted legislation authorizing or prohibiting what is described as negotiated risk – however those states have defined the concept so differently than other states that it is difficult to understand the concept as a cohesive whole. Negotiated risk can be broadly defined as the shifting of responsibility for certain consequences between the resident and the assisted living facility. Further concepts of definition vary greatly between lawyers and industry actors, and will be discussed later.
As a polestar, the general opinions regarding negotiated risk should be summarized. Opponents of the concept believe that negotiated risk is an illegitimate and unenforceable imposition upon the rights of assisted living residents by facilities attempting to contract away liability for resident injuries. Proponents color negotiated risk as a method for residents to exercise greater control over their living conditions and tailor the services supplied and guidelines imposed by the resident’s facility.
This paper proposes an alternative approach to negotiated risk that incorporates concerns of opponents of negotiated risk, and the selling points of proponents. A consumer directed negotiated risk agreement – one prepared by the resident’s independent attorney, would assist the resident in directing their standard of assisted living, while protecting their interests. A document of this type would require new state legislation authorizing the enforceability of risk shifting, and also delineating the boundaries that such an agreement could be used for. Additional benefits to this type of negotiated risk is that concerns over resident safety and welfare during the admissions process could be addressed without completely overhauling the market-based approach that is a hallmark of assisted living. Also, because residents seeking negotiated risk agreements would have to enlist the aid of an independent attorney, they would be more likely to benefit from advice regarding many other aspects of aging that they may not have otherwise obtained – including Medicaid and estate planning, education about possible exploitation, and review of pertinent resident admissions forms and contracts.
In proposing a consumer-driven approach, Joshua recognized critics' past reasons for opposing "negotiated risk" agreements, including the serious concern that facilities could mandate such "agreement" as an automatic wavier of all appropriate standards for care. That's not true choice. Attorney Eric Carlson, long-known for his advocacy for seniors, wrote an early article, Protecting Rights or Waiving Them? Why 'Negotiated Risk' Should be Removed from Assisted Living Law, Journal of Health Care Law & Policy (2007).
The specific risk that I'm thinking of these days is the risk that attends continued interaction with family members and friends for residents of assisted living or dementia care facilities. Coronavirus is just one of the risks that comes about through such interaction, and certainly the emerging details of facilities that fail to adopt or enforce sound infection control measures are, at best, disturbing even without this particular disease. Further, just because one resident is willing to "accept" risk coming from outside interactions, that doesn't mean the entire resident community would feel the same, and yet their own exposure to the risk increases with every fellow resident's outside contact. And staff members' safety is also impacted by third-party interactions.
Perhaps negotiation of the risk agreement provisions regarding community/family interactions should be made viable only where stronger safeguards can be developed against "casual" infection sources. We have standards for "green" architecture. Are there similar standards for "clean" architecture in senior living settings (and beyond)?
Thursday, April 30, 2020
The AALS Section on Law and Aging is joining forces with the Sections on Civil Rights, Disability Law, Family and Juvenile Law, Minority Groups. Poverty, Sexual Orientation, Gender-Identity Issues, Trusts & Estates and Women in Legal Education to host a program for the 2021 Annual Meeting, scheduled to take place in San Francisco in January. The theme for the program is appropriately broad -- "Intersectionality, Aging and the Law."
I like this definition of "intersectionality":
The interconnected nature of social categorizations such as race, class, and gender as they apply to a given individual or group, regarded as creating overlapping and interdependent systems of discrimination or disadvantage. Example: "Through an awareness of intersectionality, we can better acknowledge and ground the differences among us."
We need great presenters!
We are interested in participants who will address this subject from numerous perspectives. Potential topics include gray divorce, incarceration, elder abuse (physical or financial), disparities in wealth, health, housing, and planning based on race or gender or gender identity, age and disability discrimination, and other topics. The conception of the program is broad, and we are exploring publication options.
If you are interested in participating, please send a 400-600 word description of what you'd like to discuss. Submissions should be sent to Professor Naomi Cahn, email@example.com, by June 2, 2020, and the author[s] of the selected paper(s) will be notified by July 1, 2020.
AALS is planning on hosting the annual meeting from January 5-9 and I personally feel the overall theme for the conference is apt in these fraught times: The Power of Words
April 30, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Grant Deadlines/Awards, Health Care/Long Term Care, Housing, International, Legal Practice/Practice Management, Programs/CLEs, Property Management, Science, Statistics, Webinars, Weblogs | Permalink | Comments (0)
Wednesday, September 25, 2019
Kiplinger recently ran an article, How a Special Needs Trust for Your Child Can Fall Apart, which explains
Parents of disabled children must juggle a lot of responsibilities: work, bills and of course caregiving. But one ball they can’t afford to drop is special needs planning. One wrong move in this complicated ballet balancing benefits and services with asset rules could be disastrous. While every family’s situation is unique, the laws regulating special needs trusts are complex and can require some strategizing by families and trust companies — and if necessary, utilization of available government and nonprofit support programs.
The article reviews the laws, the requirements for a valid third party SNT and highlights one person's experiences, an attorney's advice for the person and advice for parents of children with special needs.
The key takeaway from this story is that it is essential that parents of a disabled child learn about federal, state, local community, charitable and other nonprofit support programs that may help. They must also discuss eligibility rules with relatives who may want to make gifts for the child, leave a share of their estate, include the child in a beneficiary designation for a retirement plan or life insurance or provide other types of in-kind support and maintenance.
Finally, setting up a special needs trust requires planning, legal and financial expertise, and the proper and compassionate administration of a professional trustee.
September 25, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Health Care/Long Term Care, Medicaid, Property Management, State Statutes/Regulations | Permalink | Comments (0)
Friday, July 26, 2019
The Pennsylvania Bar hosted our annual Elder Law Institute in Harrisburg on July 18 and 19. One of my favorite parts of the conference every year is the opening session, when Marielle Hazen gives a "year in review" on legislative and regulatory changes, and Rob Clofine does the same for case law. This year, Marielle began with a survey of the audience (250+) and asked attendees about frequency of issues arising in their practices. She asked about Medicaid, Medicare, estate planning, special needs planning and more. The most hands went up when the question was about guardianships. That surprised many at first, but then Rob Clofine also pointed out that several of his "top 10 cases" for the year involved disputes arising in the context of guardianships. As I'm now involved in a very big project about education for guardians in Pennsylvania, the informal survey is another reminder of the growing need for better planning to avoid unnecessary guardianships, as well as the concerns among families that can arise when a guardian must be appointed by a court. I'll write more about these issues and my project soon.
I wasn't able to stay for the whole conference (I really should own stock in Southwest Airlines!), but I did serve as a moderator for a 90-minute session on Continuing Care Retirement Communities in Pennsylvania. Our panelists included attorneys Linda Anderson (addressing topics from the perspective of consumers and their family members), Karen Feather, Special Assistant for Licensing in Pennsylvania's Insurance Department, and Kimber Latsha, who has deep experience representing both for-profit and non-profit CCRCs in Pennsylvania. In addition, in the audience we had Dave Sarcone, Associate Professor of International Business and Management at Dickinson College, who coauthored an article with me earlier in the year about Ongoing Challenges for Pennsylvania Continuing Care and Life Plan Communities. The session proved to be, shall we say, vibrant, with lots of interaction between panel members and the audience, and with fairly strong opinions emerging at times.
Points of strongest interaction included issues surrounding an individual or couple's assets. CCRCs typically use an underwriting process for both health and financial qualifications for applicants seeking to become new residents. Applications require disclosure of "assets" -- and the question was whether that meant "all" assets, or only those the individual or couple believe are needed in order to qualify for admission. One concern is whether an individual is "allowed" to spend "other" assets without seeking permission from the administrators of the CCRC. A similar question arose in connection with "refundable" entrance fees. In states, such as Pennsylvania, without deadlines for refunds, the waiting period can stretch to months or even years. We learned that the Pennsylvania Department of Insurance has recently revisited that fact, and is issuing new guidelines to providers about reasonable waiting periods. I can see another article in my future on these topics.
July 26, 2019 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Thursday, February 21, 2019
Kiplinger published a slide show that focuses on reasons why folks may outlive their retirement savings. 15 Reasons You'll Go Broke in Retirement include explanations, some of which are out of an individual's control but most are not. These explanations include: abandoning stocks or investing too heavily into stocks, not saving enough for your anticipated life span, living beyond your means, only having one source of income, not working long enough, getting sick, failing to take state taxes into account, financially supporting the kids, being under-insured, falling victim to a consumer scam, using retirement savings as collateral and lacking a rainy day fund.
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!
Monday, December 17, 2018
University of Cincinnati College of Law Professor of Practice Emerita Marianna Brown Bettman has a very interesting and well-written Blog report on the Ohio Supreme Court's December 12th decision in Embassy Healthcare v. Bell. The issue is under what circumstances a surviving spouse can be held liable for her deceased husband's nursing home costs under a statutory theory of "necessaries." Lots to unpack here.
December 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | 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 4, 2018
I teach contract law and I teach elder law, and often those silos overlap. But recently someone asked me whether a "power of attorney" was a contract. Somehow I had not not considered this topic before. My first reaction was "no, not usually," although certainly POAs have contract-like implications once the agent takes action using the POA as authority. I tend to think of POAs and similar appointments of an agent as bound by rather distinct "fiduciary law" obligations, as well as the limitations of the language in the POA itself and any statutory law, rather than traditional contract law principles. But perhaps my first instinct is wrong. One significance of categorization is when determining what statutes of limitation applies to any violation. It turns out the issue usually arises in the context of liability for allegations of misuse of authority.
What do you think? At least one court believes POAs are contracts, at least for purposes of applying principles of interpretation. A Court of Appeals opinion notes, when deciding whether family-member agents had authority to "self-deal" when handling real estate transactions in the name of the principal, that "Because a power of attorney is a contract, we interpret its provision pursuant to the rules of contract interpretation. . . . " See Noel v. Noel, 225 So. 3d 1114, 1117(Louisiana Ct. of Appeals, 2017).
For additional perspectives see the discussion of the Alabama Supreme Court, including the dissent, in Smith v. Wachovia Bank, 33 So. 3d 1191, 1202 (Ala. 2009).
October 4, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (3)
Friday, September 28, 2018
The Aging, Law and Society Collaborative Research Network (CRN) invites scholars to participate in a multi-event workshop as part of the Law and Society Association Annual Meeting scheduled for Washington D.C. from May 30 through June 2, 2019.
For this workshop, proposals for presentations should be submitted by October 22, 2018.
This year’s workshop will feature themed panels, roundtable discussions, and rapid fire presentations in which participants can share new ideas and research projects.
The CRN encourages paper proposals on a broad range of issues related to law and aging. For this event, organizers especially encourage proposals on the following topics:
- The concept of dignity as it relates to aging
- Interdisciplinary research on aging
- Old age policy, and historical perspectives on old age policy
- Sexual Intimacy in old age and the challenge of “consent” requirements
- Compulsion in care provision
- Disability perspectives on aging, and aging perspectives on disability
- Feminist perspectives on aging
- Approaches to elder law education
In addition to paper proposals, CRN also welcomes:
- Volunteers to serve as panel discussants and as commentators on works-in-progress.
- Ideas and proposals for themed panels, round-tables, or a session around a new book.
If you would like to present a paper as part of a the CRN’s programming, send a 100-250 word abstract, with your name, full contact information, and a paper title to Professor Nina Kohn at Syracuse Law, who, appropriately enough also now holds the title of "Associate Dean of Online Education!"
September 28, 2018 in Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, Programs/CLEs, Property Management, Retirement, Science, Social Security, State Cases, State Statutes/Regulations, Statistics, Web/Tech, Webinars | Permalink | Comments (0)
Thursday, September 27, 2018
The FTC has announced that effective September 21, 2018, financial caregivers can now request security freezes for those for whom they manage money. Managing someone else’s money: New protection from ID theft and fraud explains that "[a] security freeze restricts access to your credit reports and makes it hard for identity thieves to open new accounts in your name. Under the new law, it’s free to freeze and unfreeze your credit file at all three of the nationwide consumer reporting agencies – Equifax, Experian, and TransUnion." The law extends the ability to those who have "certain legal authority [to] act on someone else’s behalf to freeze and unfreeze their credit file. The new law defines a “protected consumer” as an incapacitated person, someone with an appointed guardian or conservator, or a child under the age of 16." The article explains that the law does require proof of legal authority, which the article notes includes a DPOA or guardianship order. This is a great idea! Make sure you tell your clients about this.
September 27, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Property Management | Permalink
First the bad -- or at least frustrating -- news. On Thursday, September 27, we received word that Senate Bill 884, the long-awaited legislation providing key reforms of guardianship laws in Pennsylvania, was now "dead" in the water and will not move forward this year. Apparently one legislator raised strong objections to proposed amendments to SB 884, amendments influenced by recent high-profile reports of abuse by a so-called professional guardian who had been appointed by courts in multiple cases in eastern Pennsylvania.
The objections reportedly focused on one portion of the bill that would have required both law guardians (typically family members) and professional guardians to undergo a criminal background check before being appointed to serve. The amendment did not condition appointment on the absence of a criminal record, except where proposed "professional guardians" had been convicted of specific crimes. For other crimes or for lay guardians, the record information was deemed important to permit all interested parties and the court to make informed decisions about who best to appoint.
What is next? Pennsylvanians will look to new leadership in the 2019-20 session in the hope for a new bill that resolves differences and that can make it through both houses. In the meantime, the courts are already moving forward with procedural reforms, adopted in 2018 at the direction of the Pennsylvania Supreme Court.
And that leads us to a more positive note about guardianship reform in Pennsylvania. Pennsylvania Common Pleas Judge Lois Murphy testified this week during a Senate Judiciary Committee meeting about the Pennsylvania Courts' new Guardianship Tracking System (GTS). It is now operational in 19 counties (out of 67 total counties) in Pennsylvania, including coming online in the major urban counties for Philadelphia and Pittsburgh. Judge Murphy reported that GTS is "already paying dividends," and she gave the example of a case in which the reporting system triggered a red flag for an estate worth more than $1 million, much higher than originally predicted, making appointment of different guardian more appropriate.
Judge Murphy predicts that as the tracking system becomes operational statewide, it should generate valuable answers, such as how many persons are subject to guardianships at any point in time, how much in assets are under management, what percentages of the pointed guardians are family members (as opposed to professionals), and what percentages of those served are over or under age 60. The hope is that GTS will also permit coordination of information about appointed guardians in state courts with information in the federal system on those appointed as Social Security representative payees, thus, again, providing more comprehensive information about trustworthiness of such fiduciaries.
You can see Judge Murphy's testimony, and hear her reasons for criminal background checks and appointment of counsel to represent alleged incapacitated persons, along with the views of retiring Senator Greenleaf and Senator Art Haywood, in the recording of the September 24 hearing recording below.
Judge Murphy testifies from approximately the 35 minute mark to the 43 minute mark, and again from 1 hour 33, to one hour 44.
Bottom line for the week -- and perhaps the session? You can certainly grow old just waiting for guardianship reform in Pennsylvania.
September 27, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, Social Security | Permalink | Comments (0)
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)
Friday, September 21, 2018
This is the third of three postings about adult guardianship reform, with an eye on legislation in Pennsylvania under consideration in the waning days of the 2017-18 Session.
Senate Bill 884, as proposed in Printer's No. 1147, makes basic improvements in several aspects of the law governing guardianships as I describe here. A key amendment is now under consideration, in the form of AO9253. These amendments:
- Require counsel to be appointed for all allegedly incapacitated persons;
- Require all guardians to undergo a criminal background check;
- Require professional guardians to be certified;
- Require court approval for all settlements and attorney fees that a guardian pays through an estate (reflecting recommendations of the Joint State Government Commission's Decedents’ Estates Advisory Committee).
Most of these amendments respond directly to the concerns identified in the alleged "bad apple" appointment cases in eastern Pennsylvania, where no counsel represented the alleged incapacitated person, where there was no criminal background check for the proposed guardian, and where the guardian was handling many -- too many -- guardianship estates.
A key proponent of the additional safeguarding language of AO 9253, Pennsylvania Senator Art Haywood, has been working with the key sponsor for SB 884, retiring Senator Steward Greenleaf. His office recently offered an explanation of the subtle issues connected to mandating a criminal background check:
The PA State Police needed to fix some technical issues for us regarding national criminal history record checks only to make sure that when we send the legislation to the FBI for approval, they won’t have anything with which to take issue. The FBI requires an authorized agency to receive these national background checks; DHS is an authorized agency, but the 67 Orphans’ Courts in PA are not. Further, the FBI prohibits us from requiring recipients of national background checks to turn them over to a third party for this purpose, so we can’t require DHS or receiving individuals to send the national background check to the court.
As such, we had to develop a procedure that would still get courts information about whether someone under this bill has a criminal background from another state that would otherwise prohibit them from serving as a guardian. We switched the language around a bit to require DHS to send a statement to the individual that verifies one of 3 things, either: (1) no criminal record; (2) a criminal record that would not prohibit the individual from serving as guardian; or (3) a criminal record that would prohibit the individual from serving as guardian. The individual would then have to bring this statement from DHS to the court when seeking to become a guardian. As in previous versions, the individual has an opportunity to respond to the court if there is a criminal record that would prohibit the individual from serving, and the response should assist the court in determining whether that person nevertheless is appropriate (for example, a person can voluntarily provide their own copy of their national background check – or other types of evidence – for the court to review).
The devil is in the details for any legislative reforms. It is often an "all hands on deck" effort to secure passage, especially in an election year.
Will the Pennsylvania Legislature pass Senate Bill 884 to make changes appropriate for safeguarding of vulnerable adults?
September 21, 2018 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)
Wednesday, September 19, 2018
Will Pennsylvania Pass Long-Awaited Adult-Guardianship Law Reforms Before End of 2017-18 Session? (Part 1)
For the last few years, I've been quietly observing draft bills addressing needed reforms of Pennsylvania's adult guardianship system as they circulate in the Pennsylvania legislature. Over the next few days, drawing upon a detailed update memorandum I prepared recently for interested parties, I will post reasons why the legislature can and, many would argue, should move forward in 2018.
Today, let's begin with background. First, here is the status of pending legislation and the timetable that could lead to passage:
Pennsylvania Senate Bill 884 (Printer’s No. 1147) presents an important opportunity to enact key reforms of Pennsylvania’s Guardianship Laws. The bill is based on long-standing recommendations from the Pennsylvania Joint State Government Commission. The Senate unanimously passed an earlier identical measure, S.B. 568, during the last legislative session (2015-16). The current bill was approved and voted out of Senate committee in June 2018, but then tabled. Although the schedule is tight, there is still time for action by both house before the end of the session in November. If not fully passed and signed this year, a new bill must be introduced in the next legislative session.
The Pennsylvania Senate has scheduled session days before the November election on September 24, 25, and 26 and October 1, 2, 3, 15, 16, and 17. The Pennsylvania House of Representatives also has scheduled session days for September 24, 25 and 25, and October 9, 10, 15, 16 and 17. If S.B. 884 is passed by the Senate in September, it appears there may be adequate opportunity for the House to move the legislation through the House Judiciary Committee and to the floor for final passage.
Second, let's review the steps taken most recently towards reform of existing Pennsylvania law:
In 2013-14, the Pennsylvania Supreme Court formed an Elder Law Task Force to study law-related matters relevant to the growing population of older persons in Pennsylvania. The team included members of all levels of courts in the Commonwealth, plus private attorneys, criminal law specialists, and perhaps most importantly, members of organizations who work directly with vulnerable adults, including but not limited to seniors. Guardianship reform quickly became a major focus of the study. I was a member of that Task Force.
Statistics available to the Task Force in 2014 show that some 3,000 new guardianship petitions are filed with the Pennsylvania Courts each year, of which approximately 65% are for alleged incapacitated persons over the age of 60. The number of new petitions can be expected to increase in the very near future. During the last six years, the cohort of Pennsylvania’s population between the ages 64 and 70 grew by a record 31.9%. Soon, that aging cohort will reach the years of greatest vulnerability with the increased potential for age-related cognitive impairments or physical frailty. Appointment of a guardian is usually a choice of last resort, sometimes necessary because of an emergency illness or because individuals have delayed using other means, such as execution of a power of attorney or trust, to designate personally-chosen surrogate decision-makers.
When a determination is made that an individual is incapacitated (as defined by statute) and in need of certain assistance (again, as defined by law), courts have the duty and power to appoint a person or an entity as the “guardian.” Once appointed by a court, guardians can be given significant powers, such as the power to determine all health care treatment, to decide where the individual lives, and to allocate how money can be spent. While Pennsylvania law states a preference for “limited guardianships,” in reality, especially if no legal counsel is appointed to represent the individual to advocate for limited authority, it is more typical to see a guardian be given extensive powers over both the “person” and the “estate.”
The Task Force began its work by undertaking a candid self-assessment of existing guardianship processes. Based on its review of the history of guardianships in Pennsylvania, the Task Force issued detailed findings as part of its final Report released in November 2014, including the following:
- Guardianship monitoring is weak, if it occurs at all.
- Training is not mandated for professional or non-professional guardians.
- Non-professional guardians are not adequately advised as to the duties and responsibilities of managing the affairs of an IP [incapacitated person].
- The quality of guardianship services varies widely, placing our most vulnerable citizens at great risk.
The Pennsylvania Supreme Court identified a need for better information about the actions of appointed guardians; such information would be central to all recommended reforms. The Task Force recommended a new system enabling statewide accountability and consistent oversight.
Following the Task Force Report and Recommendations, and under the leadership of the Supreme Court, the Administrative Office of the Pennsylvania Courts began working on procedural reforms, beginning with creation of an Office of Elder Justice in the Courts. The Courts developed a new, online Guardianship Tracking System, and in June 2018 the Supreme Court adopted new Orphans Court rules (14.1 through 14.14) that establish certain procedural safeguards for guardianships and require use of uniform, state-wide forms and reporting standards for all guardians. These rules are scheduled to become fully effective by July 2019.
Pursuant to a Judicial Administration Rule adopted August 31, 2018, the Supreme Court mandated a phased implementation of the tracking system, with workshops offering training for guardians on how to use the system to file inventory and annual reports. See Guardianship Tracking System Workshop.
Not all recommended reforms, however, can be accomplished by the Courts adopting procedural rules. Key substantive reforms require legislative action. Senator Stewart Greenleaf, the chair of the Senate’s Judiciary Committee and a frequent sponsor of child and adult protective measures, introduced Senate Bill 884 (and its predecessor). After many years of service and leadership in the Capitol, Senator Greenleaf is retiring this year; therefore, any necessary renewal of the legislation must attract new leadership.
September 19, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)
Tuesday, September 18, 2018
Do you read Robert Fleming's elder law newsletter? Tim Takacs' blog? I wanted to point out two recent blog posts I thought very useful. First is Tim's blog post, What To Do With Your Estate Planning Documents.Tim, in his blog post, discusses with whom to share your documents, discuss your plans with those affected by them, review joint ownerships and beneficiary designations, review your papers organize them and make sure they are current. Then comes Robert Fleming's newsletter where he writes in inspired response, What NOT to do With Your Estate Planning Documents..Here Robert offers these not to dos, such as: client, do not hide your documents, or write on them, or sign other documents, fail to take the documents to your next attorney, or fail to recall what you've done. I'd also like to suggest don't use your estate planning documents as a coaster or a napkin-in other words, keep them secure and in a safe place.
Monday, September 17, 2018
Jack Cumming, a California CCRC resident, frequently comments on Elder Law Prof Blog posts, bringing to bear his deep expertise in financial planning matters and his equally engaged commitment to historical accuracy in a wide variety of issues. Jack is a Fellow of the Society of Actuaries, and a Certified Aging Services Professional by Examination. During what I might call Jack’s “official career” as a professional actuary, he served as an independent consulting actuary for life and health insurance operations, and before that as a corporate officer and chief actuary for insurance companies.
I first came to know Jack during what I’ll call his “second” career. Jack helped many, including me, understand concerns about actuarial soundness issues in Continuing Care Retirement Communities. He came to his specialized expertise in CCRCs in a unique way, by moving to a California CCRC with his wife and discovering issues that can benefit from actuarial analysis. Over the last 12 years, Jack has advised CCRC residents and providers, as well as their organizations across the nation.
Jack recently commented on an item I posted on September 12, that described a particular history of poor actuarial decisions contributing to failure of a large Pennsylvania long-term care insurance company. In that post, I also reported on a new hybrid type of long-term care product, announced by New York Life Insurance Company. Jack’s response was, as usual, so insightful that, with Jack’s permission, I am posting his commentary here, elaborated by him, as a blog post in its own right.
A number of thoughts come to mind when reading the recent Elder Law Prof Blog post on long term care insurance (LTCi). The Elder Law post lists a perfect storm of what turned out to be foolhardy expectations. Morbidity was underestimated, so were contract lapse rates and mortality. Anticipated investment returns turned out to be overstated, medical and care costs escalated, and efforts to raise premiums without triggering shock lapses proved insufficient. The result for the industry has been devastating, as anyone who has been close to LTCi, is well aware. Fortunately, LTCi was a small part of the business of many insurers offering the product, so losses were absorbed. Penn Treaty, an LTCi specialist company, was not so lucky.
Now, with the benefit of hindsight, it thus appears that there were significant and material optimistic misjudgments made in bringing LTCi to the market. First, the data used for the initial pricing were not sufficiently vetted. Pricing actuaries used what data they could find but, for the most part, they failed to take into account the fact that the very existence of such insurance, then being introduced for the first time, would make it more likely that people would use the benefits.
Moreover, the opportunity for LTC providers to receive payments promoted the growth of the provider industry to deliver services that the insurance would cover. Thus, historical data from the time before there was insurance was misleading. Since the products lacked incentives for policyholders, or those offering services to them, to restrain their use, it was predictable that people would seek to make the most of their coverage. And they did and continue to do so.
Long Term Care Insurance developed originally to give the sales agents of the large life insurance companies a product that they could sell as part of a product portfolio centered on the sale of life insurance. Such a portfolio, in addition to life and long term care insurance, often included disability income and health insurance. Most of the pricing actuaries who were involved in the early development of LTCi products were life insurance specialists influenced by life insurance concepts. There’s little discretion or volunteerism about dying, so mortality data used in setting life insurance premiums tend to be relatively stable and predictable. The consequence is that underwriting and claims in large life insurance companies are principally administrative, e.g. for claims, confirm the death and send a check. More subjective risks, such as disability income (DI) insurance and LTCi, require active management over the duration of a claim by highly skilled executives experienced and specialized in those particular undertakings.
September 17, 2018 in Consumer Information, Current Affairs, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Property Management, State Statutes/Regulations, Statistics | Permalink | Comments (0)
Thursday, September 13, 2018
State Regulators Seek to Revoke Licenses of California Facilities for Failures During Fire Emergency Response
Flying into California for Labor Day weekend was a vivid reminder for me as an East Coast resident of the devastation being wrought by wildfires on the West Coast.
News articles also call attention to the need for careful advance planning and training by senior care communities -- however labeled or regulated, and wherever located -- for emergencies such as fires. Reading recent articles also demonstrates that just because you are in a "high-end" facility, administrators may not have a functional plan.
As detailed in a written complaint filed the first week of September 2018, California regulators are seeking to revoke the licenses of two Santa Rosa facilities operated under the umbrella of Oakmont Senior Living endangered by wildfires on October 8-9, 2017. The complaint also seeks lifetime bans for individual administrators. While there were no deaths of residents or staff at either location, one location, Villa Capri, was completely destroyed in the fire.
The state's complaint alleges inadequate staffing to handle nighttime evacuations, plus failure to comply with emergency and evacuation procedures, either because of inadequate knowledge or training on the plans for the administrators and staff that were present. The complaint describes a bus that could have been used to facilitate evacuation, but the on-duty staff did not have keys. It is alleged that because of these failures, "no staff were at Villa Capri to assist with the evacuation of more than 20 remaining elderly and infirm facility residents." Family members of the residents and emergency responders conducted the remaining evacuations at both locations.
The facilities, described in news articles by various labels ranging from "nursing homes" (the label used in the first line of a New York Times article) to "luxury retirement communities" (as described in the Mercury News), were licensed under California law as "residential care facilities for the elderly." As such, they were subject to regulations requiring appropriate emergency plans, including evacuation plans. It appears that Villa Capri had 62 units devoted to "memory (dementia) care" and assisted living. The second community, Varenna at Fountaingrove, is reported to have had 228 residents, including many who lived in individual "casitas," and 14 residents who needed "care and supervision" or "hospice."
The state's suit comes a few days after news of a reported settlement of a civil suit for undisclosed terms, filed on behalf of 17 residents of Villa Capri.
September 13, 2018 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)