Elder Law Prof Blog

Michigan Appellate Decision Demonstrates Impact of Statutory Presumptions in Guardian Cases

On June 5, 2018, a Michigan Appellate Court issued an order demonstrating the tension between two concerns, respect for autonomy and a goal of  protection, that can arise when a court is asked to determine who will be appointed a guardian or conservator.   The case strikes me as a good vehicle for classroom discussion.

The appellate court concludes that the trial court abused its discretion by appointing a professional fiduciary, in lieu of the alleged incapacitated person's adult daughter, where there was a failure to make specific findings to explain why the state law''s "order of priority and preference" was not followed.   The opinion for In re Guardianship of Gerstier notes:

While the probate court's focus on [the father's] welfare is commendable, the court missed a critical step in the analysis.   When Milbocker [a private, professional guardian] resigned as [the father's] guardian and conservator, [the daughter] petitioned to  be appointed to fill those roles.  At that juncture, the probate court was required to reconsult the statutory framework before appointing another public administrator.  The court never articulated any findings regarding [the daughter's] competence and suitability to serve.  Absent those findings, the court erred by appointing [a new professional guardian].  

The history recounted by the appellate court suggests that the man's daughter, living in Texas, and the man's sisters, living in Michigan, were both seeking control over the father's estate, with the sister making allegations that the daughter's personal and financial history made her an inappropriate choice. The daughter made counter allegations about the sister's motives and behavior.   In addition, the father had signed conflicting POAs.  In 2013 and again in 2015, the father identified the daughter in two powers of attorney as his preferred agent; however, in 2016, after being diagnosed with Alzheimer's disease and after his wife died, the father  began living in Michigan with his sister, where he signed a new POA designating that sister as the agent.

Michigan law grants priority to "a person nominated as guardian in a durable power of attorney or other writing." Further, in the absence of an effectively designated individual, the statute provides an ordered list of preferences, beginning with the spouse and next with "an adult child of the legally incapacitated adult." 

The Michigan appellate remanded the case to the trial court with directions to reconsider the appointment of a new guardian and conservator and to make "specific findings of fact" regarding the daughter's "competence, suitability and willingness" to serve.   Further, the court directed that if the sister provided evidence during the remand, the court must "weight her credibility carefully in light of incorrect information she provided in her initial petition...." 

Reading between the lines of the court history here, one can see how the trial court decided to go with a professional guardian, probably seeing appointment of a "neutral" professional as the safer option where money seemed to be the main focus of the control issues. (The father seemed to be comfortable traveling between his daughter in Texas and his sisters in Michigan.)  State guardianship/conservatorship laws that have adopted lists of preferred individuals, however, require additional steps to explain why party autonomy will not be respected, or why the state's preference list will not control.  Such laws significantly alter the discretion once accorded to the court under many state's older appointment laws. Will  more careful adherence to the laws change the result in this case on remand?  For the classroom exercise, ask students what they predict will be the trial court's next ruling.  

  

Indiana Appellate Court Compels Accident Settlement Funds Be Paid To Special Needs Trust

On July 26, 2018, the Indiana Court of Appeals ruled unanimously that a trial judge was wrong in refusing to fund a severely injured adult's special needs trust with $6.75 million in funds from settlement of tort suit. 

The trial judge had resisted, saying he disagreed with the legislative policy for special needs trusts, calling it a "legal fiction of impoverishment" that unfairly shifted costs of care to taxpayers.  The trial judge would allow only $1 million in settlement funds to be placed in trust.  

In the final paragraphs of In re Matter of Guardianship of Robbins, the appellate court concluded:   

The trial court may well have a genuine disagreement with the policy decisions of our state and federal legislators, but it is still bound to abide by them. . . . 

 

Here, there are no constitutional concerns preventing the legislature's policy choices from being enforced. Both our federal and state legislators have made an express policy decision to allow for a “legal fiction of impoverishment” by placing assets in a special needs trust, knowing full well that it has the potential to shift expenses to the taxpayer, but trying to ameliorate that cost by requiring that any remaining trust proceeds be repaid to the State upon the disabled person's death. While the trial court is free to disagree as to the wisdom of the legislature's policy choices, the trial court exceeded the bounds of its authority by refusing to enforce this policy choice based on that disagreement.

 

The trial court also refused to place the full amount of the settlement proceeds into the special needs trust because it concluded that the trust was solely for the benefit of the Guardian and Timothy's descendants. This is a mistake of law. As a matter of law, a special needs trust must contain a provision declaring that, upon the death of the disabled trust beneficiary, the total amount of Medicaid benefits must be paid back first, before any distributions to heirs are made. 42 U.S.C. § 1396p(d)(4)(A); I.C. § 12-15-2-17(f). Additionally, the special needs trust must be administered for the exclusive benefit of the disabled individual beneficiary for his or her lifetime. . . .  Consequently, it is a legal impossibility that Timothy's special needs trust is designed to “benefit” either the Guardian or Timothy's descendants, and the trial court's conclusion in this regard was erroneous.

The trial court's ruling on the special needs trust was reversed and the case was remanded "with instructions to direct that the full, available amount of settlement proceeds be placed in Timothy's special needs trust."

Unlicensed Long-Term Care Facilities: The Biggest Risk of All?

McKnight's Senior Living Newsletter editor Lois Bowers wrote an article that alerted me to the June 2018 publication of a new study of unlicensed residential care facilities.  From the abstract:

Residential care facilities operating without a state license are known to house vulnerable adults. Such unlicensed care homes (UCHs) commonly operate illegally, making them difficult to investigate. We conducted an exploratory, multimethod qualitative study of UCHs, including 17 subject matter expert interviews and site visits to three states, including a total of 30 stakeholder interviews, to understand UCH operations, services provided, and residents served. Findings indicate that various vulnerable groups reside in UCHs; some UCHs offer unsafe living environments; and some residents are reportedly abused, neglected, and financially exploited. Regulations, policies, and practices that might influence UCH prevalence are discussed.

The study included visiting unlicensed facilities in Georgia, North Carolina and Pennsylvania.  

For the full report see Unlicensed Care Homes in the United States: A Clandestine Sector of Long-Term Care, by Michael Lepore, Angela M. Greene, Kristie Porter, Linda Lux, Emily Vreeland, and Catherine Hawes, published in the Journal of Aging and Social Policy.

 

Reading Statistics in Senior Housing Trends

A recent newsletter article written for investors in senior housing (mostly REITs) captures a curious U.S. dynamic.  The population of older persons is rising; occupancy in senior housing is mostly down; rental rates in senior housing are going up.  Push, pull, push.  And despite a clear 12-month downward trend in occupancy rates, another push, as new construction in senior housing is still robust.  The Seeking Alpha article (fully available behind a registration firewall) summarizes:

In 2017, 45,000 new units of supply were delivered into the [senior home] market. To put this in perspective, approximately 140,000 people turned 83 in 2017, which is close to the average age in senior homes.  Currently about 10% in this age group reside in senior homes.  So, with 140,000 people turning 83, and additional demand was created for about 14,000 home units.  You can hence see where a 45,000 unit supply can create a decrease in occupancy.  

After analyzing returns in three specific REITs, the newsletter make a broader prediction that is relevant beyond the context of investment advice: 

There might be light at the end of the tunnel.  The same inflationary forces that are making life difficult for senior home operators are beginning to bite the senior home construction companies.  From labor shortages to rising lumber prices, they are not facing a different cost curve than they did a few years back.  Their ability to pass some of this is currently limited as purchasers of said properties are struggling to pass on higher rents to operators.  If this actually succeeds in slowing down the supply, senior housing could become a great investment concept once again.  

My own reaction to this type of an article (and I see a lot of articles that attempt to explain drops in senior occupancy) is that no one has successfully integrated the impact of state and federal government policies on funding (limited though that funding may be) for home care, nor the strength of the "age in place" preference of future seniors.  

PA Elder Law Institute Session on CCRCs and LPCs Will Discuss Pending Legislation and Indicators on Financial Performance

As I mentioned earlier, Pennsylvania's annual Elder Law Institute is July 19 and 20 in Harrisburg.  On the morning of the first day, I'm on a panel examining new issues in Continuing Care Retirement Communities (and Life Plan Communities), along with Linda Anderson, an elder law attorney, Kimber Latsha, who frequently represents health care and senior living providers including CCRCs, and  Dr. David Sarcone, a Dickinson College business professor with background in accounting and health care management.  

I'm especially looking forward to the discussion of Pennsylvania 2018 House Bill 2291, introduced in April of this year, but already moving from one committee, to its first of three considerations on the floor, to the Rules Committee, with amendments.  In other words, this bill seems to have "legs."  The sponsors of the bill are calling it an "Independent Senior Living Facility Privacy Act."  As with most catchy titles for pending legislation, the details are a bit more complicated.  In this instance the bill's lead sponsor is from a county where a single CCRC was investigated by the State Department of Human Services following a complaint that "staffing levels" were inadequate, leaving certain residents allegedly at risk.  The Department of Human Services issued an adverse order in May 2017 related to certain aspects at the facility and apparently that order is the subject of administrative appeals.  

The provider contests the order, and in written testimony submitted to the Pennsylvania House Committee on Aging and Older Adults Services, the CEO explained his company's position that the investigators were abusing their authority by entering independent living (IL) units, questioning IL residents, and thus failed to respect the individual autonomy of residents not actually living in "personal care" facilities, facilities that would be subject to HS authority:

"We feel that DHS is inappropriately applying the term 'premises' [from the personal care regulations] as the grounds and building on the same grounds, used for providing personal care services.  Each senior apartment is a 'separate individual leasehold,' where an inhabitant, the lessee of the apartment leases an apartment and is afforded the enjoyment and freedom to engage family and third party services."

At the core of this issue is a question about expectations of the public and the residents about care in "independent living" units of a licensed "continuing care community." (Pennsylvania has at least one pending wrongful death suit involving an entirely different CCRC, where one issue is whether the CCRC's alleged awareness of an IL resident's worsening dementia was ignored.  She allegedly died of complications of exposure after wandering and being locked out of her IL apartment complex on a cold night.) 

The proposed legislation would exclude "independent senior living facilities" (including public housing outside of the CCRC context) from future state Human Services investigations, including investigations by the Long-Term Care Ombudsman. 

I expect we will also be talking about financial performance numbers of both for-profit and nonprofit CCRCs -- especially as some of the numbers suggest that some operations both sides of the industry "profit" line may be struggling to "live within their means."  

In other words, there will be some especially "hot" topics for discussion.  

Consumer Credit Security Freezes for Free on September 21, 2018.

The National Center for Law & Elder Rights (NCLER) has released a fact sheet explaining a new law that allows consumers to place freezes on their credit info for free, starting on September 21, 2018. New Law Provides Free Security Freezes and Increased Fraud Alert Protection explains that "[o]n May 24, 2018, the President signed Public Law 115-174 into law. Section 301 of Public Law 115-174 amends the Fair Credit Reporting Act, to establish a new federal right for consumers to implement a security freeze of their credit file." (citations omitted).

The legislation establishes standards for the creation, temporary lifting or “thaw,” and permanent removal of security freezes from the nationwide consumer reporting agencies. The security freezes are essentially limited to parties seeking the consumer’s information for credit purposes. The freeze does not apply to parties who seek the report for employment, insurance, or tenant-screening purposes. It also does not apply to existing creditors or their agents or assignees conducting an account review, collecting on a financial obligation owed them, or seeking to extend a “firm offer of credit” (i.e.,prescreening).

 

In addition, the new law preempts state credit freeze laws and expands the length of  fraud alerts from 3 months to a full year!  Further, "[t]he legislation’s preemption extends to any state requirement or prohibition with respect to subject matter regulated by the statute’s provisions relating to security freezes. For example, some state statutes are stronger than the new federal standards by allowing consumers to freeze access to credit reports for employment or insurance purposes." There is also a provision covering when a fiduciary needs to secure a freeze for an individual who is incapacitated.

PS-if you haven't checked your credit reports this year, what are you waiting for?

 

More on Using Trusts As Planning Devices for Firearms

I've written in the past about the use of "gun trusts" as a legal device to handle passage of guns to others, while avoiding some laws related to registration by gun owners.  

There's another way to think about trust documents with guns, to provide a safeguarding process within families.  As one article suggests, 

Talk to your loved one about how to safely transfer ownership of their guns if they should become incapacitated. Consider writing a “gun trust,” a legal document outlining that process.

For more, read the Kaiser Health News's piece, Worried About Grandpa's Guns? Here's What You Can Do.  Thanks, Matt Lawrence, for sharing this story.

Hidden Costs for States to Take Over Management of Struggling Care Facilities

A newspaper reporter in Pennsylvania, Nicole Brambila, has another interesting article related to law and aging.  She is examining what happens when struggling nursing home operations require intervention to protect existing residents.   Following the collapse of Skyline Healthcare facilities, which had been operating nine nursing homes in Pennsylvania, state authorities found it necessary to step in, and to hire a temporary manager.  Ms. Brambila begins:

The collapse of the nursing home operator caring for about 800 residents in nine Pennsylvania facilities, including one in Berks County, that required the state step in with a temporary manager will cost $475,000, the contract shows.

 

In April, the Pennsylvania Department of Health stepped in with a temporary manager at nine properties operated by Skyline Healthcare LLC over concerns the New Jersey-based company's finances may have put residents at risk.

 

State officials tapped Complete HealthCare Resources, which manages Berks Heim Nursing and Rehab, to step in as temporary managers until buyers could be found. The contract, obtained by the Reading Eagle under Pennsylvania's Right-to-Know Law, ended June 9. New owners purchased the Skyline homes last month, but Complete HealthCare stayed on through the transition.

 

The management fee is paid by fines collected from nursing home facilities.

 

Over the past five years, the state has stepped in more than a dozen times with temporary managers for poor performing nursing homes, at a cost of more than $4.2 million, according to health data provided to the newspaper.

 

The average cost for managing these troubled homes exceeded $335,000.

There is a lot to unpack here, including exactly how a state collects fines from financially defaulting providers.  Other states facing related issues in Skyline operations include Arkansas, Kansas, Nebraska and South Dakota.  According to the article Skyline recently purchased the some of the properties from Golden Living Centers, also the center of controversies, but then turned around and sold its interest 14 months later.

For the full story, read  "Pennsylvania to pay $475,000 for temporary nursing home manager."  Ms. Brambila seems to be carving out an important niche for her investigatory reporting, by focusing on senior issues. She recently wrote an important series on guardians in the Pennsylvania courts, also for the Reading Eagle, as we described here.   

G.W. Law Prof Cahn Addresses USSC Ruling on Statutory Insurance Revocation Following Divorce

George Washington Law Professor Naomi Cahn has written a very timely piece considering the Supreme Court's June 11 decision in Sveen v. Melin. 

For academics, this decision could be relevant to many courses, including estate planning, family law, property law, and contract law, and, of course, constitutional law. Did a state divorce law, potentially effectuating revocation of a former wife as the named beneficiary of her former husband's life insurance policy, conflict with the Contracts Clause of the U.S. Constitution?  The case has drawn attention in part because it offers an "early look" at analysis rendered by President Trump nominee Justice Gorsuch, in his lone dissent.   

Naomi is also interested in the dissent.  She writes in part:

Rather than critique Justice Gorsuch’s interpretation of the Contracts Clause, I want to focus on another aspect of his dissent: he twice (approvingly) cites to a brief filed by more than a dozen women’s groups supporting Kaye Melin (the majority does not mention this issue at all).

 

It is important to acknowledge that, while virtually all states provide for revocation of beneficiary provisions in wills in favor of an ex-spouse, only about half the states (and the Uniform Probate Code) have extended this revocation to nonprobate assets, such as life insurance policies. There is a policy debate among states about whether automatic revocation is a good idea, and Congress does not provide for such automatic revocation in federally regulated nonprobate assets.

 

In addition, there is little empirical evidence concerning what policyholders actually want or expect will happen upon divorce. Indeed—and here is one of the two contexts in which Gorsuch cited the women’s brief—“[a] sizeable (and maybe growing) number of people do want to keep their former spouses as beneficiaries.” The growth of collaborative divorce, for example, shows that divorce is not necessarily the messy, take-no-prisoners assumption that underlies modern divorce revocation statutes. As Justice Gorsuch noted, citing to a brief filed by the U.S. government in a 2013 case that argued a state divorce revocation statute should be preempted, there may well be legitimate reasons why a decedent did not change a beneficiary designation, ranging from wanting to support the ex-spouse’s care for joint children to feelings of connection. Justice Gorsuch cited the Women’s Law Project brief again in addressing alternatives to the state’s choice. . . . 

For Professor Cahn's full analysis, including her interesting conclusion, see Svenn v. Melin: The Retro View of Revocation on Divorce Statutes.  

Where the Elders Are

CityLab recently ran a story about populations and particularly, where elders are residing. Mapping America’s Aging Population explains that "Demographers and geographers have watched as this aging cohort transformed the U.S., from young children in the 1950s and 1960s to senior citizens today. This graying of America has left a distinctive geographical fingerprint."

Want to guess where elders are living?  If you started with the sunbelt you would be somewhat correct. "Unsurprisingly, popular retirement states like Florida and Arizona have high concentrations of older Americans... What may be more of a surprise is the broad swaths of elderly running through the Midwest and the Appalachians. These regions have aged significantly, as many younger residents headed toward the coasts."  The demographic maps provide good pictorial representations of the locations where elders are living.

The article looks at births and deaths and relocation. Interestingly, "[p]eople are less likely to move as they age. In 1968, parents of the baby boomers were in their highly mobile, young adult years, but today boomers are older and more apt to stay where they are."

The Boomers seem to be clustering in certain geographic areas:

Baby boomers have contributed to this trend. Fifty years ago, this group was spread out evenly among the rest of the general population. By 1990, they had became more bicoastal and were concentrated in a small number of dynamic, growing metropolitan areas.

Between 1990 and 2000, a substantial number of boomers flocked from these metro areas to amenity-laden retirement and pre-retirement regions, like the Pacific Northwest, Florida, northern Wisconsin and Michigan, as well as some areas of the South, like the Ozark region and the Western Carolinas.

These areas have continued to grow, while baby boomers moved away in their greatest numbers from the southern Great Plains and the area along the Mississippi River Valley.

Thanks to my colleague and dear friend, Mark Bauer, for sending me the article.

 

 

Senior Savers: Where Reality TV Meets Seniors Looking to Downsize

Bryan Devore, an engaging realtor in California, recently wrote to me to report on his latest venture, a cable television program devoted to showing folks how to consider options for senior living.  After I reviewed the first promotional trailer,  I joked with Bryan about whether his target channel was HGTV, a favorite in my own family (resulting in the fact that now we know all too much about shiplap and sliding barn doors).  Bryan responded by joking that perhaps the Lifetime network was the better target.  

In any event, the concept is now "reality" and the first episode of Senior Savers TV is available.  You can catch the 30 minute episode (with surprisingly interesting commercials for those of us who track senior living marketing topics) here: 

 

In New York, Complainants about Fiduciary Abuse Seek Action by NY Attorney General

One of our good readers sent us an item by CityLimits.org tracking recent complaints made to (and about) the NY Attorney General.  The title of the article is They Say Legal Guardians Ripped Them Off-- and the State AG Let Them.  I've come to expect that when I see an investigative piece on problems with guardians, I will read comments from a range of national advocates, such as Dr. Sam Sugar of Americans Against Abusive Probate Guardianship or Richard Black with the Center for Estate Administration Reform.  Both individuals comment in this particular piece.

There are many challenges ahead for much needed reform efforts, including the fact that different laws can govern different forms of fiduciary relationships.  For example, even though the article focuses in major part on "guardians," a label used to describe individuals or entities appointed by the court to assist an individual deemed incapacitated and unable to handle his or her own affairs without such a court-appointment, the article demonstrates that the problems can arise outside the guardianship arena. 

In the opening tale for the article, the individual in need of assistance, a 31 year old disabled daughter, was apparently the the beneficiary of her deceased father's trust. The father became entangled with an untrustworthy individual shortly before his death, and that person was named the trustee.  The actions by that individual -- described in the article as a "disbarred" lawyer and former state senator -- control much of the dynamic.  It is not clear from the article whether the daughter's parents were estranged before the death of her father, thus sidelining the mother from accessing the trust in trying to help their daughter.  Guardians later appointed by court for the daughter reportedly contributed to the costs for the estate. Yet key allegations of abuse focus on the actions of the alleged untrustworthy trustee, who was selected for this fiduciary role by the father, not the court. 

The article reports on this as an example where the AG has allegedly declined to intervene following reports of fiduciary abuse.

Guardianship reform is important and, thank goodness, is ongoing in many states.  But true reform is needed in the hearts and minds of abusive individuals in a variety of financial caregiving relationships, not just guardianships.  The challenges for courts and law enforcement officers, including AGs and other prosecutors, will only grow without a stronger ethical commitment at the core.

The Evolution of Email Scammers: Moving from Granny, to Granny's Lawyers and Financial Companies as Their Targets

In my Elder Protection Clinic days, I met with family members of older adults victimized by off-shore scammers.  In one notable case, the older mother,  normally a savvy woman about her personal finances, had succumbed to the flattery of someone posing as a  financial advisor, who offered her various new "investments."  He knew just how to work her, appealing to her "business acumen," using internet maps to learn about her neighborhood and thus to make it seem his office was in a building near her bank in a suburb of Pittsburgh.   Even after her daughter, with the help of a legitimate financial advisor who caught the unusual activity on the mother's accounts, shut down any easy means of access to her mom, the mother continued to believe the perpetrator was just bad at financial advice, and not totally corrupt.   

The elderly mother's  judgment on who to trust was impaired, but the impairment was specific and hard to recognize because she otherwise functioned fairly well.  The combination of the perpetrator's flattery, his appeal to her once-strong financial skills, and the fact that she was lonely, trapped in her house as her physical strength was waning, all contributed to the success of the scam.  It all began with a single email.

A recent announcement by the FBI of a coordinated law enforcement effort to disrupt international scammers reveals how the scamming industry has evolved. The FBI explains:

Operation WireWire—which also included the Department of Homeland Security, the Department of the Treasury, and the U.S. Postal Inspection Service—involved a six-month sweep that culminated in over two weeks of intensified law enforcement activity resulting in 74 arrests in the U.S. and overseas, including 42 in the U.S., 29 in Nigeria, and three in Canada, Mauritius, and Poland. The operation also resulted in the seizure of nearly $2.4 million and the disruption and recovery of approximately $14 million in fraudulent wire transfers.

 

A number of cases charged in this operation involved international criminal organizations that defrauded small- to large-sized businesses, while others involved individual victims who transferred high-dollar amounts or sensitive records in the course of business. The devastating impacts these cases have on victims and victim companies affect not only the individual business but also the global economy. Since the Internet Crime Complaint Center (IC3) began formally keeping track of BEC [business e-mail compromise] and its variant, e-mail account compromise (EAC), there has been a loss of over $3.7 billion reported to the IC3.

 

BEC, also known as cyber-enabled financial fraud, is a sophisticated scam that often targets employees with access to company finances and trick them—using a variety of methods like social engineering and computer intrusions—into making wire transfers to bank accounts thought to belong to trusted partners but instead belong to accounts controlled by the criminals themselves. And these same criminal organizations that perpetrate BEC schemes also exploit individual victims—often real estate purchasers, the elderly, and others—by convincing them to make wire transfers to bank accounts controlled by the criminals.

 

Foreign citizens perpetrate many of these schemes, which originated in Nigeria but have spread throughout the world.

Law firms were among the most frequent targets of the scammers, who posed as clients to access funds held in the law firms' trust accounts.  For more on the industry, read "It's Time to Stop Laughing at Nigerian Scammers -- Because They're Stealing Billions of Dollars,"  from the Washington Post.    

Aging: "The One Shark We Cannot Escape"

My good friend and colleague, Pennsylvania Elder Law Attorney Linda Anderson, has a thoughtful essay about her personal journey in elder law in a recent issue of  GPSolo,  the ABA journal for solo, small firm, and general practitioners.  Her closing paragraphs address several core issues, comparing her elder law focus with traditional tax and estate planning concerns.  I enjoyed her use of classic lines from the movie Jaws.  

My early work with elder clients or their adult children across a variety of asset levels certainly involved tax and estate planning. But it became clear that serving and protecting these clients demanded more than just good lawyering, that good planning needed “a bigger boat.” It entailed comprehensive knowledge of the Social Security, Medicaid, and VA benefits bureaucracies, close engagement with insurance providers, geriatric care managers, social workers, and other professionals, as well as close monitoring of state and federal regulatory and policy changes and housing and age discrimination laws, among others. The eventual next step for me was completing the requirements to become a certified elder law attorney (CELA).

 

 

Solo or general practice attorneys do not have to become dedicated elder law experts when taking on clients seeking long-term care and funding planning. Take those clients, but be prepared to augment tax and estate planning expertise with a deep dive into areas of elder and special needs law and funding mechanisms. All this is doable, of course, but the biggest difference is in mindset. Attorneys often approach estate and long-term care planning as transactional or episodic--needs arise, documents are drafted or revised, and we and the clients move on. But the nature of the legal work I've touched on above demands a continuing, flexible outlook and a lot of homework. When in doubt, consult with or refer your client to a CELA-qualified attorney. These attorneys are listed in the website for the National Elder Law Foundation (NELF, nelf.org). Another resource for lawyers (who may or may not be CELA-qualified) is the National Academy of Elder Law Attorneys (NAELA, naela.org). Both organizations are excellent sources for information and referrals.

 

 

Finally, as we all learn in time, everything that we've covered here will become very personal for each of us. This may first happen through our parents or siblings as they transition and age, but it's necessarily part of our own futures as well. That's true whether you're a Baby Boomer looking at 70, a Gen Xer thinking that 40 is “old,” or any age in between.

 

 

Aging is the one shark we cannot escape. But as attorneys, we know how to plan and can build our clients' (and our own) “boats” to manage aging as well as possible.

 

The full article is currently behind a paywall on the ABA website. For more of Linda's wise words, it is worth tracking down a copy of An Elder Care Lawyer's Story.  It is in Volume Issue No. 2 (March/April, 2018) of GPSolo.  It is also available on Westlaw, although, of course, that's another paywall.   

 

Details Emerge on the Federal Senior $afe Act

I promised more information about the consumer protection measures signed into law by President Trump on May 24, 2018.  Here's the more detailed update I wrote for WealthManagement.com:  The New Senior $afe Act Encourages Reporting Senior Financial Abuse. 

Beware the Befriender - Another Tale, This Time from Brooklyn

A book I co-authored on The Law of Financial Abuse and Exploitation was inspired, sadly, by several cases we had in our Elder Protection Clinic at Dickinson Law in Carlisle Pennsylvania.

In one case, at first the relationship between great niece and great aunt had seemed to friends and neighbors to be loving and protective.  It wasn't until the elder's care needs increased, and it turned out there was no money to pay for care by professionals, that the truth was uncovered.  The aunt's money, close to a million over three years, was gone. 

With the benefit of hindsight, you could see how the exploitation began -- with the younger woman asking for permission to use the elder's accounts for a few improvements and upgrades around the house. Then she stopped asking for permission.  Eventually her spending was for fur coats, jewelry and a luxury car (actually, two). Her aunt no longer could see to review her accounts and there weren't any other relatives to ask questions.  The niece probably didn't count on her aunt living past 100 -- or testifying against her at the criminal trial about the unauthorized spending, when she was 101.   The younger woman tried to justify her behavior, testifying at trial that "she wanted me to have the money. She was going to leave it to me in her will."

Several friends, including Karen Miller, in Florida, sent me copies of another tragic tale, this time from Brooklyn via the New York Times.   I suspect, that in this account of a relationship between an older widow and a local waitress, the younger woman probably told herself her "friend"wanted her to have the money.  She too will be thinking about this in jail.  Read She Found Comfort in a Brooklyn Diner, Then Lost Everything.   

NYT: Safety Issues When Guns Are In Elderly Hands

Here's a challenging but potentially important topic for many families on this holiday weekend. 

Becky has a post last week about the importance of doctors asking older patients about guns as a safety risk.  I've posted in the past, here and here,  about related issues, including laws affecting registration of gun ownership when intervivos or testamentary trusts are used as the legal vehicle to pass down weapons to succeeding generations.  

The New York Times continues the conversation with In Elderly Hands, Firearms Can Be Even Deadlier.  From Paula Span's article: 

While older adults make many fewer suicide attempts than younger cohorts, they die more often, in part because they use such lethal methods. Yet health care providers who ask older patients about driving and wandering may not ask about guns.

 

“Safety planning for adults with dementia is something every clinician thinks about, but I don’t think firearms are often on the radar,” said Dr. Donovan Maust, a psychiatrist at the University of Michigan Medical School and co-author of a recent article on guns and dementia in the Annals of Internal Medicine.

 

They should be. At various stages of dementia, people may grow unable to distinguish loved ones from intruders. Their decision-making ability deteriorates. They can become paranoid, depressed, impulsive, agitated or aggressive.

Dr. Maust's co-authored commentary, linked above, is worthy of closer reading.  Perhaps in an attempt to allay the fears of gun owners that dementia is not an automatic disqualifier for gun ownership, the piece suggests that doctors consider the stage of any neurocognitive impairment as part of a multi-party discussion about access:

A diagnosis of cognitive impairment or dementia does not in itself mean that a person should not have access to firearms—the level of cognitive impairment is probably most important. In a recent review, Patel and colleagues proposed using the clinical dementia rating scale to estimate the stage of dementia and the person's ability to safely complete complex tasks, including firearm handling. 

 

For patients with minimal cognitive impairment, approaches could be similar to those related to driving, including acknowledging the emotions involved and allowing the PWD [person with dementia]  to maintain agency in the decision for as long as it is safe. As with an “advance driving directive”, PWDs, their family members, and their health care providers may proactively discuss firearm access and consider setting a “firearm retirement date”. This patient-centered approach may allow an older adult to maintain decisional control and identify trusted family members or providers as future surrogate decision makers. To our knowledge, no one has tested the acceptability or efficacy of this approach.

Did you catch that acronym above, perhaps a new one for many of us?  PWDs? My thanks to colleague Laurel Terry for her early morning reading habits -- and  for sharing the NYT article with us. 

Congrats to NAELA

NAELA celebrated its 30th year with its annual conference in New Orleans, LA on May 17-19, 2018. The conference consisted of three tracks: legal tech, advocacy and public benefits.  The well-attended conference packed in a great amount of programming in two and a half days. Speakers included leaders from the field of elder law, consultants, cyber security experts, researchers and more.  NAELA members unable to attend may check the NAELA website for more information.

In addition, Michael Amoruso was sworn in as the next NAELA president by outgoing president Hy Darling.  Congrats NAELA!

(In the interest of full disclosure, I'm a former president of NAELA and co-chair of the planning committee for this conference.)

 

Pennsylvania Considering Changes to Guardianship Laws for 2018 Passage

Pennsylvania has several interesting bills pending that would make significant changes to the laws governing court-appointed guardians for incapacitated adults, and at least one of these could move forward this legislative session.  I've learned to expect late night action from the Pennsylvania legislature once it reconvenes in late May and before it adjourns in late June or early July.  The pending legislation includes:

• Senate Bill 884 (Printer's No. 1147), with Senator Greenleaf as the lead sponsor, offered as a comprehensive reform package for adult guardianship laws, relying in large part on model legislation, and drafted before the most recent high profile news stories and editorials that involve allegations of improper appointment of a particular fee-paid guardian in a number of guardianships for incapacitated adults on the eastern side of the Commonwealth.  On April 16, 2018 this bill was referred to the Senate Appropriations Committee.  

I've seen recent drafts of proposed amendments to SB 884 that would require alleged incapacitated persons to be represented by a lawyer during the guardianship proceeding, require criminal background checks through the State Police (without creating automatic disqualifications if there is a history of convictions), and would also mandate "certification" for "professional guardians." Professional guardians are defined to include individuals or entities that are appointed to serve 3 or more incapacitated persons.  The responsibility for certification of the professional guardians would be assigned to the Pennsylvania Department of Human Services, although the proposed language would appear to permit the department to accept certification through an outside program such as that offered by the Center for Guardianship Certifications. 

• House Bill 2247 (Printer's No. 3296), with Representative Gillen as the lead sponsor, and submitted in April 2018 following the high profile articles, would mandate criminal background checks for all current or prospective guardians and provides that courts "shall disqualify a guardian or prospective guardian convicted of an offense classified as a felony under the laws of this Commonwealth or a substantially similar offense under the laws of another jurisdiction."  

While the proposed amendment to S.B. 884 would require criminal background checks for potential guardians, unlike HB 2247, it stops short of banning appointment of individuals who have any particular criminal history. No doubt this decision reflects a 2003 ruling by the Pennsylvania Supreme Court in Nixon v. Commonwealth.  In that case, a per se ban on employment of individuals as long-term care workers if they were convicted of certain crimes was deemed unconstitutional.  Senate Bill 884, even if amended, would give greater discretion to the courts to consider the individual history and the nature of the offense than would HB 2247.

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Which States Mandate Certification or Licensure of Guardians?

As I have written in a recent post, Maryland has adopted mandatory training for guardians, effective January 1, 2018.  The Administrative Office for the Maryland Courts is rapidly developing educational materials, including an orientation and topic-specific videos.  In-person training programs are also under development, on a county-by-county basis. 

I recently had a great conversation with Attorney Nisa Subasinghe at the AOMC and I was impressed by all her office is accomplishing in a relatively short time, with a pro-active approach to the topic of court-appointed guardians and the use of orientation videos to get the process rolling.  

Nisa also provided links to the new Maryland Rules on mandatory training for guardians:  Md. Rules 10-108, 10.205.1, and 10-304.1.  In addition, these rules refer to  Guidelines for Court-Appointed Guardians of the Person and Property.  Thank you, Nisa! 

The state of Washington also is developing a program for "lay/family (non-professional) guardians training."  

County-by-county training can be a real problem, as I'm realizing in Pennsylvania where we have 67 counties and probably almost that many views on the need for (or best approach to) oversight of guardians.  

Other states have also been active in establishing education and testing for prospective or current guardians.  Several states' programs have been developed following allegations of improper appointments or lack of oversight.  We've highlighted some of these states in recent Elder Law Prof Blog posts, including Arizona, New Mexico, Nevada and Florida.   

A key decision point is whether to mandate certification or licensure only for so-called professional guardians or also for individuals serving as a guardian for a family member or friend, sometimes  described in legislation or court rules as "nonprofessional guardians."   Driven by complaints by family members about perceived high costs, mistakes, or abuse by fee-paid guardians, some states have focused only on professionals, perhaps on the theory they are affecting larger numbers of alleged incapacitated persons.  Other states, such as Maryland, have taken the position that a minimum threshold of education and oversight is appropriate for all persons serving in guardian or conservator roles, including family members. 

The Center for Guardianship Certification (CGC) offers a map showing certain states with mandatory guardianship programs or rules.  As depicted on the map, some states have adopted  CGC certifications as the state standard for approval of "professional" guardians.  In addition, I noticed that CGC has a list (by exam numbers) of the recent results -- pass or fail -- of certification exams conducted by CGC.   

The ABA also has an online chart (March 2018), prepared by attorney Sally Hurme for the ABA Commission on Law and Aging, with additional information about state certification or licensing rules for guardians. 

You can tell there is a lot of movement in this area -- understandably so given reports across the country. As I was preparing this post, I noticed that neither of these two state charts had identified Maryland as one of the mandatory training states and I suspect I'm missing a few more states that have certification programs in the works.