Sunday, November 10, 2019

The Wrong Goodbye

ProPublica ran an in-depth story about a case of mistaken identity and the removal of life support.The Wrong Goodbye covers the story of removal of life-support from a patient, after which the family learns that the patient was not in fact their relative.  The must-read story offers examples of how and why mis-identification of patients may occur.  After writing about the facts and both families, the story turns to the litigation.

“The defendants negligently misinformed the plaintiff that her brother ... was admitted to the hospital in an unconscious state. The defendants negligently misinformed the plaintiff that her brother had died on July 29, 2018. As a result of the defendant’s misinformation and negligent conduct the plaintiff has suffered severe emotional harm and injuries.”

[The hospital] ... did not deny the mix-up, but argued it was not liable for any damages because no member of the Williams family ...  had actually been a patient at the hospital. The hospital asked a judge to dismiss the case.

[The] lawsuit was reported in a daily story inside the New York Post on Jan. 27, 2019. It did not report the identity of the person taken off life support, but the story was reproduced on a slew of news websites.

[The widow] found the article on her Facebook feed. It had been aggregated on a website called Dearly.com. She eventually realized the story involved [her husband's] death, that he was the unidentified dead man in the article. Months into her efforts to figure out the details of her husband’s death, she saw in [the attorney], who’d been quoted in the article, someone who might help. Maybe [the attorney] would represent her, too.

She met [the attorney] in his Brooklyn office. He was quite certain she had a case. He was less certain he could represent both families. He arranged for her to call [a member of the other family] to see if everyone was comfortable with the idea....

When the conversation was over, [the attorney] was representing both families.

The article ponders the oversight from the law and various state and federal agencies and the impact this has had on the families. In the epilogue to the article, we are updated

More than a year after her husband’s death [the decedent's spouse]  feels deeply frustrated, and increasingly doubtful that her husband’s death will ever be fully explained or that anyone will ever be held accountable. The police have all but stopped speaking to her. [The hospital] seems to have been cleared by the Health Department.

...

[The widow's] remaining chance at what she wants — a full explanation and punishment if warranted — appears to rest with ... the lawyer....

This summer, a judge in the Bronx rejected [the hospital's] motion to dismiss [the] lawsuit. [The attorney] is eager to start collecting more material in discovery.

. . ..

Read this article, realizing the story has not yet ended. It provides an important teaching point for us with our students. 

November 10, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Other, State Cases | Permalink | Comments (0)

Tuesday, September 17, 2019

Faith Based Colorado Hospital Fires Dr. Who Planned to Help With MAD

Although it's been a bit of time since Colorado 's medical aid-in-dying (MAD) law went into effect, but recent events suggest the topic has not been settled. According to Kaiser Health News, Firing Doctor, Christian Hospital Sets Off National Challenge To Aid-In-Dying Laws

A Christian-run health system in Colorado has fired a veteran doctor who went to court to fight for the right of her patient to use the state’s medical aid-in-dying law, citing religious doctrine that describes “assisted suicide” as “intrinsically evil... [the doctor] had planned to help her patient...   end his life at his home [the patient] is eligible to use the state’s law, overwhelmingly approved by Colorado voters in 2016."

This illustrates the clash between faith-based hospitals and state laws. "As hospitals across the country have consolidated, five of the top 10 hospital systems by net patient revenue are associated with the Roman Catholic Church ...  [t]hat includes hospitals that did not previously have any religious affiliation. Meanwhile, there are 10 U.S. jurisdictions where aid-in-dying has been approved and public support for the option is increasing."

Stay tuned-this is going to take a while to be resolved through the courts.

September 17, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Medicare, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, August 26, 2019

Abuse of SNF Resident On Video

This is just a sad story.  Margaret Collins resident of a SNF, was abused by those tasked with caring for her, according to an article in Huffington Post. Family Sues After Video Shows Nursing Home Workers Taunting Elderly Dementia Patient summarizes the events. Read the story and watch the video. It can be a good jumping off point for a discussion of the importance of resident rights, and litigation and regulations.   Other stories about this are available here,  here , here, and here to include a few. Additional info is available on the blog of the attorneys for the plaintiffs.

Thanks to Professor Dick Kaplan for alerting me to the story.

August 26, 2019 in Cognitive Impairment, Consumer Information, Crimes, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, August 21, 2019

Informal Will Creation and the Problems They Can Cause: The Aretha Franklin Example

From the New York Times, a window into what can happen when the high profile matriarch of a family either had "no" estate plan, or perhaps left behind three handwritten written documents that "could" be treated as wills.  

Family squabbles over celebrity estates are not rare, as infighting over the estates of PrinceJames Brown and, more recently, Tom Petty, have made clear. But Franklin’s case is especially complex because determining how she wanted her assets distributed involves deciphering whether any of the three hand-scrawled documents found in her home three months ago — one of them under the couch cushions — should be embraced as her will. 

 

When [Aretha] Franklin died, at age 76, her family believed she had no will. Under Michigan law, that meant her estate would be divided equally among her sons. With that understanding, the sons approved the appointment of a cousin, Sabrina Owens, as the estate’s personal representative, or executor.

 

But if any will is accepted by the probate judge overseeing the estate, that formula for the distribution of assets would be upended, with far-reaching consequences for Franklin’s sons, whose earnings could change — some drastically, depending on which will is declared legitimate. Ms. Owens’s status as executor would also be in jeopardy.

 

“The wills changed everything,” Charlene Glover-Hogan, a lawyer for Kecalf Franklin, the singer’s youngest son, said at a contentious court hearing on Aug. 6.

My thanks to my colleague, Professor Laurel Terry, for this link!

 

August 21, 2019 in Consumer Information, Current Affairs, Estates and Trusts, State Cases | Permalink | Comments (0)

Friday, August 16, 2019

Medical Aid in Dying in NJ on Hold

The AP has reported that a judge has temporarily enjoined the NJ Medical Aid in Dying law that went into effect a few weeks ago.  The hearing is scheduled for October according to the story, New Jersey’s medically assisted suicide law put on hold. 

"The order means that New Jersey’s recently enacted measure cannot be enforced by the state attorney general and comes in response to a lawsuit brought by a doctor practicing in the state... [who argues in the lawsuit] that immediate and irreparable damage will probably result in view of the fact that if its enforcement is not immediately enjoined, New Jersey citizens can actually begin dying.”  The plaintiff, a doctor, contends "that the law is an affront to religious doctors [and] the law violates constitutional rights as well as common law barring suicide."

Stay tuned.

August 16, 2019 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Friday, July 26, 2019

Brief Report from Pennsylvania's 2019 Elder Law Institute

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)

Wednesday, July 24, 2019

Too Old To Commit Another Murder?

The Washington Post ran a story with this eye-catching headline, He was deemed too old to be dangerous. Now, at 77, he’s been convicted of another murder.

When we teach elder law, oftentimes the focus is on the elder as a victim, but we do know that an elder can also be a perpetrator. In this case, the perpetrator, who

When he came before a judge in Portland, Maine, in 2010, he was in his late 60s, and had spent roughly a third of his life in prison. After doing time for killing his wife, he had assaulted another woman and gone back to jail, only to get out and attack a third woman. Flick’s violent tendencies didn’t seem likely to go away with age, both the prosecutor and his probation officer warned. But the judge chose to sentence him to just shy of four years in prison, noting that by the time he was released in 2014, he would be 72 or 73.

Here's the crux of the matter--the quote from the judge who sentenced him: "[a]t some point Mr. Flick is going to age out of his capacity to engage in this conduct... , and incarcerating him beyond the time that he ages out doesn’t seem to me to make good sense.”  The article notes that statistics support the judge's perspective on this, but those statistics didn't predict the outcome here:

Eight years after that hearing, [he] struck again, fatally stabbing a woman outside a laundromat ... as her 11-year-old twin sons watched. Now 77, he was convicted of murder ... and, this time, it looks likely that he’ll spend the rest of his life in prison. The charges carry a minimum 25-year sentence, and prosecutors plan to request that he be placed behind bars for life.

So to answer the question posed in the title of this post, No, he wasn't too old to commit another murder.

July 24, 2019 in Consumer Information, Crimes, Current Affairs, State Cases, Statistics | Permalink | Comments (0)

Thursday, June 20, 2019

In-Depth Story on Reverse Morgages

USA Today, ran this story, Seniors were sold a risk-free retirement with reverse mortgages. Now they face foreclosure. This is not a happy story.

Alarming reports from federal investigators five years ago led the Department of Housing and Urban Development to initiate a series of changes to protect seniors. USA TODAY’s review of government foreclosure data found a generation of families fell through the cracks and continue to suffer from reverse mortgage loans written a decade ago.

These elderly homeowners were wooed into borrowing money through the special program by attractive sales pitches or a dire need for cash – or both. When they missed a paperwork deadline or fell behind on taxes or insurance, lenders moved swiftly to foreclose on the home. Those foreclosures wiped out hard-earned generational wealth built in the decades since the Fair Housing Act of 1968 1

  . . .        

Borrowers living near the poverty line in pockets of Chicago, Baltimore, Miami, Detroit, Philadelphia and Jacksonville, Florida, are among the hardest hit, according to a first-of-its-kind analysis of more than 1.3 million loan records. USA TODAY worked in partnership with with Grand Valley State University, with support from the McGraw Center for Business Journalism.

The article looks at some examples of individuals who are in trouble and examines the situation that led us to this point.

Federal regulators and industry leaders cautioned that numbers alone tell only part of the story, since many foreclosures result from the natural end of reverse mortgages: the homeowner’s death. The average term of a reverse mortgage is about seven years, and if a family member is not willing or able to repay the loan, lenders push the property through foreclosure.

Regulators said actual evictions of seniors are rare. There’s no way to verify that, though, since HUD, the top government regulator of Home Equity Conversion Mortgage 4 loans, does not sign off on evictions – or even count them.

The article is lengthy but full of important information. Read it yourself, and then assign it to your students.

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

June 20, 2019 in Consumer Information, Current Affairs, Federal Statutes/Regulations, Housing, Other, State Cases, Statistics | Permalink | Comments (0)

Tuesday, June 4, 2019

Stan Lee-Another Victim of Elder Abuse?

Stan Lee may have created a superhero universe, but he had no superhero to protect him from alleged elder abuse, according to a recent article in the Washington Post. As Stan Lee’s ex-caregiver is arrested, last year’s videos provide an illuminating lens on his elder-abuse case explains that Mr. Lee's "adviser and confidant" had  been arrested and "appeared in [an Arizona court] on a charge of being a fugitive of justice,  ... accused of 'fleeing California charges of fiduciary elder abuse....'”   According to the article, the charges filed in California include "theft, embezzlement, forgery/fraud against an elder and false imprisonment of an elder."  One twist in this case is a video made by Mr. Lee some time ago in which he claimed he was not a victim of elder abuse.  Now there are claims that the video wasn't done of his own free will.  You can view the video in the article.

All I can say is stay tuned....

 

June 4, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, May 14, 2019

California ALF Resident Evicted for Not Paying Rent

That headline may have elicited a shoulder shrug from you and a fleeting thought as to why I thought this was newsworthy enough to be the subject of a blog post.  So how about if I add some info for you?  What if the story's title is this? Medi-Cal recipient, 101, evicted from Santa Rosa assisted living facility for being unable to pay. This is a situation where the elder outlived her savings. As the story explains

[The resident] like most people, probably never thought she’d live to be 101, and she clearly did not expect to be paying nearly $7,000 a month to be living in a senior residential care facility.

The expense drained her of all the money she had after selling her modest home in Santa Rosa’s Holland Heights neighborhood in 2013. By November of last year, all [the resident] could afford to give ...  the assisted living facility, was her monthly Social Security check of about $1,300 — it wasn’t enough. ...

On April 18, [the resident], who suffers from dementia, was wheeled into Sonoma County eviction court on Cleveland Avenue. With her bank account drained, the former real estate agent was now receiving Medi-Cal, the state’s version of Medicaid health insurance, which the private-pay [ALF] le did not accept.

The story ultimately has an ending-a Medi-Cal bed was located for the resident. The story goes on to focus on the lack of beds in the area, the cost of long-term care, and the problem for folks like the elder in this story who outlives her savings.

Thanks to Julie Kitzmiller for alerting me to this story.

May 14, 2019 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, Medicaid, State Cases | Permalink | Comments (0)

Sunday, April 28, 2019

PA Supreme Court's Choice of Law Ruling Obligates New Jersey Family Members to Provide Filial Support For Disabled Adult Son In Pennsylvania

In what appears likely to be the final chapter in a long-running "reverse" filial support case in Pennsylvania, a unanimous Pennsylvania Supreme Court ruled on April 26, 2019 that Pennsylvania statutory law applies to determine the liability of older New Jersey parents on the issue of whether they must pay for the long-term care costs for their son in a private institution in Pennsylvania.  New Jersey law, unlike Pennsylvania law, expressly exempts any person "55 years of age or over" from a support obligation for an adult child.  

I've been following the case of Melmark v. Schutt since at least 2016, and you can review some of the history of the case here, here and here.  Until this ruling, the parents had successfully argued that New Jersey's law controlled the case.   From the Supreme Court's opening footnote, however, where it outlined evidence of the parent's annual income, it was apparent the Court was outraged that parents who could be characterized as wealthy could refuse to pay a nonprofit care provider.  The Court ruled that there was a "true conflict" between the laws of New Jersey and Pennsylvania, and recognized that while many factors such as the domicile of the parents and the stipulated 'residency" of the son  pointed to the application of New Jersey law, the most significant contact factor was the "harm" of nonpayment, occuring in Pennsylvania.  The Court concluded:

"[A]lthough New Jersey's welfare laws apparently provide for Alex's support at public expense, there is no reason to suppose that New Jersey has adopted a public policy favoring imposition of the ongoing cost of care for indigent adults on an unwilling private third party [i.e., Melmark].... [T]he exemption in New Jersey's statutory support law for parents over 55 years of age cannot justifiably override Pennsylvania's governing statute -- at least for the period between April 1, 2012 to May 1, 2013 -- so that the financial burden of Alex's care falls upon Melmark." 

I have long thought the case has uniquely "tough facts," and Pennsylvania has a history of using Pennsylvania's law to obligate families to cover certain costs of care for indigent family members.  Further, the Court also ruled that the institution had a viable related theory of recovery under Pennsylvania common law, sounding in quantum meruit or unjust enrichment.  

The opinion has potential implications for cross border claims of filial support in the more typical Pennsylvania fact pattern, where adult children are asked to pay the costs of care for an aging parent who fails to qualify for Medicaid.   E.g., Health Care & Retirement Corp. of America v. Pittas.  I can see the potential for out-of-state children to be subject to a claim for reimbursement, especially if they have any role in choosing a Pennsylvania facility where Medicaid is unavailable to pay, facts that might also give the Pennsylvania court personal jurisdiction over the out-of-state children. 

April 28, 2019 in Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, April 1, 2019

New Article on Planning for Beneficiaries with Special Needs

Kristen Lewis has published a really great article in the March 2019 issue of Estate Planning Magazine.  Planning Challenges for Beneficiaries With Special Needs. To accommodate adequately the particular circumstances of beneficiaries with special needs, multiple trusts may be required provides a comprehensive discussion of 10 challenges faced by estate planners when a beneficiary has special needs.

Consider the opening of this article

Disabilities do not discriminate based on a family’s socio-economic status. Families of great wealth have children or other beneficiaries with disabilities at the same rate as families of modest means. Estate planning attorneys, and the other allied professionals who serve these families, are no longer able to take the position that “We don’t do special needs planning,” or worse yet, recommend that the child or other beneficiary with a disability simply be disinherited (which is likely grounds for malpractice). A recent study by the Centers for Disease Control and Prevention concluded that the prevalence of Autism Spectrum Disorder (ASD) has risen to one in every 68 births in the U.S. A more recent study concluded that the estimated prevalence of children in the U.S. with a “parent-reported” diagnosis of ASD is now one in 40. The 2010 U.S. Census reported that almost 20% of the U.S. civilian non-institutionalized population claimed to have a disability.  With statistics like these, estate planners and allied professionals must become, and remain, educated about the tools and techniques available to help clients secure the future of beneficiaries with disabilities within the broader context of estate planning. A critical first step is recognizing, and knowing how to overcome, the most common challenges to effective special needs planning. (citations omitted)

Read this article, then save it to your library as a resource.  You will be glad you did!

PS-shameless plug: Mark your calendars for Stetson Law's 2019 Special Needs Planning Institute for October 16-18, 2019. Registration opens July 1. #StetsonSNT2019

 

April 1, 2019 in Cognitive Impairment, Current Affairs, Dementia/Alzheimer’s, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, March 18, 2019

Florida AG Creates Senior Protection Team

Florida Attorney General Ashley Moody announced last week the creation of the Senior Protection Team "an intra-agency group of experts working together to fight fraud and abuse. The team is comprised of leading members from the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division and Medicaid Fraud Control Unit. Seniors v. Crime and the Florida Department of Law Enforcement will also actively assist the team with investigations and outreach efforts." The team is being led by Statewide Prosecutor, Nick Cox, a long-time advocate for the protection of elders from scams and frauds.

Kudos to General Moody!

March 18, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Florida AG Creates Senior Protection Team

Florida Attorney General Ashley Moody announced last week the creation of the Senior Protection Team "an intra-agency group of experts working together to fight fraud and abuse. The team is comprised of leading members from the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division and Medicaid Fraud Control Unit. Seniors v. Crime and the Florida Department of Law Enforcement will also actively assist the team with investigations and outreach efforts." The team is being led by Statewide Prosecutor, Nick Cox, a long-time advocate for the protection of elders from scams and frauds.

Kudos to General Moody!

March 18, 2019 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, February 27, 2019

Nursing Home Employees Indicted

McKnight's Long Term Care News reported that Nursing home employees indicted for involuntary manslaughter after patient’s death from bedsores. "The Ohio attorney general has indicted seven former Columbus nursing facility workers on dozens of charges following a patient’s 2017 death from bedsores ... against six employees and a contracted nurse practitioner at the Whetstone Gardens and Care Center. All told, the seven individuals have been hit with 34 charges, including involuntary manslaughter, with some stemming from alleged neglectful care of a second patient." One of the patients died of septic shock and the second received insufficient care.  The SNF takes a different view of the incidents.

Stay tuned....

 

February 27, 2019 in Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Cases | Permalink | Comments (0)

Tuesday, December 18, 2018

ALFs Too Popular for Resident Safety?

Kaiser Health News recently ran a story about ALFs that focuses on resident safety. Assisted Living’s Breakneck Growth Leaves Patient Safety Behind opens with a story about one resident and then points out

Assisted living facilities were originally designed for people who were largely independent but required help bathing, eating or with other daily tasks. Unlike nursing homes, the facilities generally do not provide skilled medical care or therapy, and stays are not paid for by Medicare or Medicaid.

Dementia care is the fastest-growing segment of assisted living. As these residences market themselves to people with Alzheimer’s and other types of dementia, facilities across the country are straining to deliver on their promises of security and attentive care, according to a Kaiser Health News analysis of inspection records in the three most populous states.

We know that ALFs are regulated at the state level and thus regulations from one state may vary from another. We also know that residents of ALFs are going to need assistance with ADLs. What more do we know?

[Residents] are older and frailer than assisted living residents were a generation ago. Within a year, 1 in 5 experience a fall, 1 in 8 visit an emergency room and 1 in 12 have an overnight hospital stay, according to the Centers for Disease Control and Prevention. Half are 85 or older.

“Assisted living was created to be an alternative to nursing homes, but if you walk into some of the big assisted living facilities, they sure feel like a nursing home,” said [one expert who is] director for mission partnerships with the Alzheimer’s Association.

There is a tension between viewpoints-regulation vs. the environment the facilities market for residents. Residents with dementia may pose a challenge for the ALFs.

Nearly a quarter of the nation’s 30,000 assisted living facilities either house only people with dementia or have special areas known as memory care units. These wings have locked doors and other safeguards to prevent residents from leaving. The facilities often train staff members in techniques to manage behavior related to these diseases and provide activities to keep the residents engaged and stimulated.

These units usually are more expensive, with monthly costs averaging $6,472, compared with $4,835 for regular assisted living, according to a survey by the National Investment Center for Seniors Housing & Care, a group that analyzes elder care market trends. Senior housing investors earned nearly 15 percent in annual returns over the past five years, higher than for apartment, hotel, office and retail properties, according to the center. Beth Burnham Mace, chief economist at the center, said memory care unit construction was outpacing all other types of senior housing.

Aggressive behavior, a hallmark of dementia, is a major problem in assisted living facilities. One national study, published in 2016, found that 8 percent of assisted living residents were physically aggressive or abusive toward residents or staff.

As noted earlier, regulation varies amongst the states. According to one study cited in the article, "only seven states required facilities to have a registered nurse. States required anywhere from two to 30 hours of training for dementia unit workers. A handful of states required no specialized training ... [and]  19 states set minimum staff-to-resident ratios for dementia units, while the others left it to the facilities."

December 18, 2018 in Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Webinar-Recognizing Elder Abuse

Mark your calendars now for a free webinar from the National Center on Law & Elder Rights on Signs of Elder Abuse, Neglect, and Exploitation. The webcast is scheduled for 2 p.m. on January 16, 2019.  Here is a description of the webinar

Lawyers and others who work with older adults should be aware of potential signs of abuse, neglect, and exploitation. This awareness requires an understanding of abuse signs, as well as the questions to ask when abuse is suspected. As the first part in the forthcoming National Center on Law and Elder Rights (NCLER) Elder Justice Toolkit, this webinar will help lawyers tune in to potential warning signals and train the audience on key questions to ask when elder abuse is suspected. The fast paced one-hour program will include checklists of physical, behavioral, and emotional signs of abuse, sexual abuse, self-neglect, caregiver neglect, and exploitation. 

To register, click here.

December 18, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, Programs/CLEs, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Monday, December 17, 2018

Ohio Supreme Court Addresses Liability of a Surviving Spouse for Nursing Home Debt

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, December 10, 2018

Thinking about New York Time's Article on Guardianships and One Woman's Personal Story

For anyone working in legal fields where adult guardianships may be an option, for anyone teaching elder law, health care law, constitutional law or even landlord-tenant law, a recent New York Times article, "I'm Petitioning . . . for the Return of My Life," is an important read.

On a threshold level, this is a well-told tale of one woman, Ms. Funke, who becomes subject to an intervention under New York adult protective services law, and, eventually, to a full-blown guardianship proceeding.   It can be easy to become enraged on behalf of Ms. Funke as you read details about her past life as a freelance journalist and world traveler, and compare it to the limitations placed on her essential existence under a guardianship. 

The article is a rather classic example of using one tragic story, a human story, to paint a picture of a government process gone wrong.  At several points in the article, the writer, John Leland, offers questions that suggest some conclusions about how unfair the process has been to Ms. Funke.  The writer asks, for example, 

"If you were Ms. Funke, shouldn't you be allowed to withdraw into the covers [of your bed] if you wanted to?  And the clutter in your apartment -- couldn't people understand that a writer needs materials around?  Even if she were evicted, she had money to start somewhere else.  Courts evict people with lots less [than she appears to have]. " 

It's implied that the answers to those questions may outweigh the fact that the protective services intervention prevented the landlord from completing an eviction of Ms. Funke, an eviction that would have forced her out of her apartment of 40+ years.    

Other, less dramatic details in the article suggest that for every Ms. Funke, there may be other people -- an unknown number of people in New York -- who are also very alone and who have also lost control over their lives because of physical frailty, mental decline, depression or other facts, and who are rescued with the help of a protective services intervention. Sometimes the intervention interrupts the decline, usually with the help of family member or friend who volunteers to help, sometimes acting with a measure of authority under a power of attorney, making a guardianship unnecessary. 

The challenge, of course, is knowing when to help (and how far to go), and when to preserve the  individual's right  to make choices that appear unsafe.  Some of the most complex cases involve people who have spent a lifetime on a unique and often solo path, and now have few family members or friends to help them as that path becomes rockier with age or illness, especially when they have no plan for the future.  In the face of such facts, as one person interviewed in the article observes, guardianships are a "blunt instrument."

Something I wrote about last week also figures into the New York situation -- the apparent absence of a guardianship case tracking or monitoring system.  

But another issue I'm concerned with is also suggested.  At one point, an interview with one of Ms. Funke's guardians, a so-called professional (in other words, not a family member or a public guardian) discloses he does not know how far his authority as guardian extends.  For example, would he be allowed to prevent her from marrying?  He responded, he did not know.

It would seem that guardians and other agents, alleged incapacitated persons, -- and family members -- could all benefit from greater information, and to ongoing education on their rights, duties and options.  That was also a theme emerging from article asking the question  "Where's Grandma?" that I linked to last week and that I link to again here.    

My thanks to the several folks who suggested this New York Times article for discussion on our Blog, including my Dickinson Law colleague, international human rights expert, Dermot Groome.    

December 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (2)

Thursday, December 6, 2018

Kansas Disciplinary Case on Fees

The Kansas Supreme Court released a lengthy disciplinary opinion on November 30, 2018  that concerns, among other things, excessive fees. The case, In re: Crandall, resulted in a 6 month suspension.  The opinion is available here.   The Kansas Supreme Court addressed several procedural issues in its opinion. As far as fees, the court found that "testimony provides clear and convincing evidence and establishes that the representation of [clients] was straightforward and did not require the time and labor needed to justify the amount ... charged." The opinion goes step-by-step through the  provisions of Rule 1.5(a) criteria to determine reasonableness of a fee. The Court found that there was clear and convincing evidence that the attorney had violated Rule 1.5.  The opinion also examines other issues and concludes "that the fees in two cases were unreasonable in violation of KRPC 1.5(a) and that [the attorney] violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(b) (communication), 1.7(a) (concurrent conflict of interest), and 8.4(d) (conduct prejudicial to the administration of justice)."

December 6, 2018 in Consumer Information, Current Affairs, Legal Practice/Practice Management, State Cases | Permalink