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 (0)

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

Wednesday, December 5, 2018

The Importance of Guardianship Tracking Systems (and a related CLE Program!)

I've been a bit busier than usual lately and haven't felt I could take the time to Blog regularly even though I'm constantly seeing intriguing topics to discuss.  I'm buried in a manuscript with a looming deadline!  Fortunately, I'm seeing that Becky Morgan is keeping everyone updated and I've been benefiting from her regular reports.  I hope to get back to daily posts of my own by January.  

In the meantime, I can report on a smaller, interim task of  serving as a co-presenter for a half-day Continuing Legal Education program at the Pennsylvania Bar Institute on  new developments in Guardianship Practice and Procedure on Friday, December 7.   Among the important developments, the Pennsylvania Courts is nearing completion on its statewide implementation of a Guardian Tracking System or GTS.  In 2014, the Supreme Court's Elder Law Task Force strongly recommended adoption of such a system, having determined just how little was actually known across the state about open guardian cases.  Implementation of the new system began with a pilot in Allegheny County in July 2018.  As of today, 60 counties are "live" in the system.  The remaining 7 counties are scheduled to be included by the end of this month.

With the help of the new tracking system, I learned that we currently have more than 14,000 active guardianships in Pennsylvania.

Key features of the GTS system include:

  • Automation:  a means of automatically running a process to check specific aspects of guardianship reports for missing information or other concerns;
  • Flagging:  when a concern is detected, the item is automatically flagged, allowing court personnel to review and respond to the potential problem;
  • State-wide Court Communications: providing the court system with a means of immediate and cost-effective state-wide communications whenever a judge in one case is alerted to suspicion of neglect or other improper conduct by a guardian; and
  • Alerts on Specific Guardians:  when an "alert" is triggered on a specific guardian in one case, the system will generate notices to all of the other courts in the state, alerting them to the potential need for action on that individual in their cases.  

Such a system required entirely new software, new reporting forms, and new court rules to make implementation effective.  We will be talking extensively about the new rules and forms on Friday.  The migration  from the older system of record-keeping imposes a huge learning curve on many involved in guardianship matters, including lawyers.

The need for better systems in Pennsylvania has been highlighted during the last year of controversies surrounding appointment of one particular individual as guardian for alleged incapacitated persons in three Pennsylvania counties.  She is accused of mismanaging cases, plus it turned out she had a criminal history for fraud in another state. 

See also the recent news reports about another Pennsylvania guardianship matter that asks the troubling question "Where's Grandma?" The  reporter on this case, Cherri Gregg, who also happens to be a lawyer, opines that everyone in the case, including the lawyer appointed as guardian, and the family members of the person subject to the guardianship, needed better education about their roles after the grandmother's own children passed away, as the grandmother became more vulnerable, and especially when it became necessary to place her in a nursing home.  

My special thanks to Karen Buck, Executive Director of the SeniorLAW Center in Philadelphia, and the good folks at Pennsylvania Courts' Office of Elder Justice for helping me with my part of the presentation for Friday!

December 5, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Programs/CLEs, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, December 4, 2018

SNF Silver Tsunami Hitting Texas?

A recent article mentioned that the number of elders in Texas who will need SNF care is going to be a "silver tsunami."  The Houston Chronicle published this article, Silver Tsunami set to hit Texas nursing homes where the article acknowledges "[m]ore than 12 percent of the Texas population is over 65, and that number is growing. According to the Texas Demographic Center, the over-65 population across the state is projected to increase by more than 262 percent by 2050." But it is more than the numbers creating this "silver tsunami: the impact is magnified "by the increasingly complex medical conditions — such as Parkinson’s and Alzheimer’s — of aging Texans needing nursing home care. According to data from the Alzheimer’s Association “2018 Texas Facts and Figures,” more than 380,000 of the state’s residents have already developed Alzheimer’s disease or other dementia. In Texas, Alzheimer’s is the sixth leading cause of death, and its prevalence is expected to increase by almost 30 percent by 2025."

The article also highlights the fact that in many instances the caregivers themselves will be elders.

We all need to be planning ahead.....

December 4, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Monday, December 3, 2018

Decline in US Life Expectancy

U.S. life expectancy has declined. What's up with that? According to an article in the Washington Post, this is not good news for us. U.S. life expectancy declines again, a dismal trend not seen since World War I emphasizes the impact of the opioid and suicide crises.

The data continued the longest sustained decline in expected life span at birth in a century, an appalling performance not seen in the United States since 1915 through 1918. That four-year period included World War I and a flu pandemic that killed 675,000 people in the United States and perhaps 50 million worldwide.

The U.S. trend seems to be opposite of what is happening in other countries, and although the decline may not seem very large, it is still part of an overall concerning trend. The numbers re: opioid deaths cited in the article are shocking. Read the article to absorb the data and look at the geographical info detailing where opioid deaths are highest and lowest.  It's just not drug deaths attributing to the decline. "Other factors in the life expectancy decline include a spike in deaths from flu last winter and increases in deaths from chronic lower respiratory diseases, Alz­heimer’s disease, strokes and suicide. Deaths from heart disease, the No. 1 killer of Americans, which had been declining until 2011, continued to level off. Deaths from cancer continued their long, steady, downward trend."

December 3, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Federal Statutes/Regulations, Health Care/Long Term Care, Other, State Cases, Statistics | Permalink

Friday, November 30, 2018

Senate Special Committee on Aging-Guardianship Hearing

Earlier I had blogged about the upcoming hearing on guardianships scheduled for the Senate Special Committee on Aging The hearing was held on November 28, 2018, and a report as well as the video of the hearing are now available.  You can also access the witness statements here.

November 30, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink

Thursday, November 8, 2018

Call for Proposals-National Center for Victims of Crime

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

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

 Call for Workshop Proposals

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

Click here  to submit a proposal.

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

8 Briefs-Financial Exploitation by Conservators

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

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

as well as key resources for these cases.

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

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

 

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

Monday, November 5, 2018

A 22 Year Retrospective of Elder Abuse Prosecutions

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

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

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

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

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

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

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

 

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

Friday, October 26, 2018

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

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

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

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

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

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

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

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

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

Continue reading

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

Tuesday, October 23, 2018

The Need for Fiduciary Service Organizations

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

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

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

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

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

 

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

 

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

 

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

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

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

Monday, October 15, 2018

Rural and Tribal Elder Justice Summit

Registration is now open for the Rural and Tribal Elder Justice Summit scheduled for November 14-15, 2018 in Des Moines, Iowa. Here is info about the program

On World Elder Abuse Awareness Day 2018, the U.S. Departments of Justice and Agriculture announced a joint Statement of Action to promote elder justice in rural and tribal communities. Although more than 20 percent of older adults live in rural America, rural and tribal communities face unique challenges in their efforts to combat elder abuse, neglect, and financial exploitation.

To advance this priority, the Department of Justice is hosting a Rural and Tribal Elder Justice Summit on November 14–15, in Des Moines, Iowa. This Summit will bring together a diverse group of experts and elder justice professionals to: (1) identify the challenges rural and tribal communities face in responding to elder abuse; (2) identify promising practices, resources, and tools available to rural and tribal communities; and (3) explore what more can be done to break down silos and foster greater collaboration at the tribal, local, state, and federal levels.

Please join us for this important event and help us to advance elder justice in rural and tribal communities.

For more information about the summit and rural elder justice topics, please visit the Elder Justice Initiative website

 

To register for the summit, click here.

October 15, 2018 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Cases, Federal Statutes/Regulations, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, October 10, 2018

Pennsylvania's Legislature Stalls Guardianship Reform But Moves Forward on Controversial "Protection" Bill

As recent readers of the Elder Law Prof Blog will know, the Pennsylvania legislature is in the waning days of the 2018 legislative year.  Despite strong support for basic reforms of adult guardianship laws, the legislature has once again stalled action on Senator Greenleaf's guardianship reform package, Senate Bill 884. Apparently the latest delay arose when one senator objected to a provision requiring criminal background checks for proposed new guardians, because of his own experiences as a guardian for an adult child.   

Guardianship reform has been on the legislative docket since at least 2014 when the Pennsylvania Supreme Court's Elder Law Task Force issued its comprehensive report recommending much needed changes, including higher standards for appointed guardians.  But this one senator's late-breaking concerns triggered another delay.  Similar legislation was approved by the Senate in the previous legislative term, only to be stalled that time in the House.  

Thus, the contrast with another bill affecting seniors, one that is rushing through the Pennsylvania Legislature in 6 months, is particularly dramatic.  House Bill 2291, as most recently amended in Printer's Version No. 3917, was introduced for the first time in April 2018 and cleared the Pennsylvania House with a unanimous vote on October 9, 2018.  

The bill has been cast as "protection" of seniors against unwanted intrusions on their privacy by government investigators.  Sounds like a commendable purpose.  But the much larger purpose seems to be about protecting "providers" of certain types of housing for seniors, including "independent living units" in continuing care retirement communities (CCRCs, also called Life Plan Communities) and publically-funded "senior multifamily housing units," from investigation by Pennsylvania authorities where there are potential concerns about suitability of that type of unit for the needs of particular seniors, especially those at risk of self-neglect or third-party exploitation because of dementia.  One member of the  House, a legislator from Westmoreland County where a CCRC has been investigated (apparently the only such investigation in the state), has been quite successful in attracting support for his bill to prevent such investigations from happening in the future. 

Now the Pennsylvania Senate will have all of three days -- its last three working days in 2018 -- to consider HB 2291 for the first time. 

Has HB 2291 been carefully considered by all the stakeholders, including seniors and their families?   It may not matter when the train is running at full steam.

 

October 10, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, Retirement, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, October 4, 2018

Is a Power of Attorney a "Contract"?

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

Aging, Law and Society CRN Call for Papers in Advance of 2019 Annual Meeting in D.C.

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

Rhode Island's Brown University Student Investigators Tackle Topic of Elder Abuse Prosecutions

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 1: Reported Attacks Are on the Rise, Yet Perpetrators Avoid Prison

Part 2:  Barriers to Prosecution Leave Victims at Risk

Part 3: Creating a Stronger Safety Net for Victims

Part 4:  Mother and Son Locked in a Cycle of Violence

Part 5:  Police Training is Crucial Part of Solution

Part 6: When a "Guardian" Becomes a Fiscal Predator

Part 7:  Gaming the Systems is Easy for Guardians

Part 8: Scammers Prey on Victims' Trust and Fear

Part 9: Exploitation Puts a High Price on Friendship

Part 6 is somewhat different, as it tracks the "successful" prosecution of a court-appointed guardian who pled "no contest" in 2015 to charges of embezzling money from an 80-year old elderly client.  The embezzlement scheme allegedly involved false claims for services and double-billing.  According to other news sources, the guardian, an attorney who was eventually disbarred in connection with her plea, was required to pay more than $130k in restitution and serve 30 months of home confinement in lieu of a "suspended" sentence of seven years in prison. 

September 27, 2018 in Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Legal Practice/Practice Management, Property Management, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Tuesday, September 25, 2018

Iowa Supreme Court Case Demonstrates Significance of "Vulnerable Person" Standards in Elder Abuse Cases

Protection laws may be predicated on proof that victims were unable to protect themselves because of a "mental or physical condition."  Or sometimes the laws define a right to protection as arising when the person is of a certain age and "because of that age" is unable to protect him- or herself. 

The Iowa Supreme Court explained Iowa's vulnerable person exploitation standard in a recent case arising from a request for an order protecting a 69 year-old woman from her son:

We find the following elements need to be proved by a person claiming elder abuse to qualify as a vulnerable elder as defined in  [Iowa Code] section 235.F.1(17): (1) The person must be sixty years or older, and (2) is unable to protect himself or herself from elder abuse as a result of one of the following: (a) age, (b) a mental condition, or (c) a physical condition. Id. The statute makes it clear that if a person is sixty years or older and age alone, without a mental or physical condition, makes someone unable to protect himself or herself from elder abuse, then that person is a vulnerable elder as defined in section 235F.1(17). . . . 

 

The district court viewed the testimony and concluded Chapman's age alone made her a vulnerable elder.  In our de novo review, we give weight to the district court's finding and find Chapman's age made her unable to protect herself from elder abuse.  She gave all her assets to her children.  She was unemployed with a fixed income.  [Appellant son] demanded $35,000 from her to stay in the mobile home [she had originally owned].  At her age, she was unable to pay him.  She voice a concern that she was to old to handle the eviction notices [he] was giving her. 

 

In summary, [the son] took advantage of Chapman due to her age and financial condition.  The evidence supports a finding Chapman was a vulnerable elder.  The purpose of the elder abuse statute was to allow our elderly population to seek relief from actions such as Wilkinson's without the expense of a more costly and time consuming action that others argue are appropriate under the circumstances.  

For the full opinion, see In re Petition of Chapman, 890 N.W. 2d 853 (Iowa 2017). 

September 25, 2018 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Sunday, September 23, 2018

Kicked Out of ALF?

My colleague and dear friend, Professor Mark Bauer, sent me this story from CNN.   Kicked out of assisted living: What you can do focuses on the situation where "[a]cross the country, assisted living facilities are evicting residents who have grown older and frail, essentially saying that 'we can't take care of you any longer.'"  This happens more often than you think. The article cites  2016 statistics thath show "[e]victions top the list of grievances about assisted living received by long-term care ombudsmen across the U.S. In 2016, the most recent year for which data are available, 2,867 complaints of this kind were recorded -- a number that experts believe is almost surely an undercount."

The article notes often there is little recourse, especially with regulations at state levels varying.  The reality?

While state regulations vary, evictions are usually allowed when a resident fails to pay facility charges, doesn't follow a facility's rules or becomes a danger to self or others; when a facility converts to another use or closes; and when management decides a resident's needs exceed its ability to provide care -- a catchall category that allows for considerable discretion.

Unlike nursing homes, assisted living facilities generally don't have to document their efforts to provide care or demonstrate why they can't provide an adequate level of assistance. In most states, there isn't a clear path to appeal facilities' decisions or a requirement that a safe discharge to another setting be arranged -- rights that nursing home residents have under federal legislation.

Then there are situations where the ALF takes the position they can't care for the resident any longer, or transfers the person to the hospital and refuses to allow them to return on discharge. As is often the case, the article notes the ALFs offer justifications for the evictions.

The article suggests these tips for prospective residents and families:  "ask careful questions about what the facility will and won't do... What will happen if Mom falls or her dementia continues to get worse? What if her incontinence worsens or she needs someone to help her take medication?... Review the facility's admissions agreement carefully, ideally with the help of an elder law attorney or experienced geriatric care manager. Carefully check the section on involuntary transfers and ask about staffing levels. Have facility managers put any promises they've made ... in writing." Get a doctor's evaluation when the ALF says it can't provide the care, contact the long-term care ombudsman, file suit, seek relief under the ADA and look at adjusting expectations.

The article is accompanied by a video.  Check it out. Thanks for Professor Bauer!

September 23, 2018 in Consumer Information, Current Affairs, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink

Friday, September 21, 2018

The Nitty Gritty Details of Adult Guardianship Reform (Part 3)

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)

Thursday, September 20, 2018

Focusing on the Bigger Picture in Adult Guardianship Reform (Part 2)

Continuing with the analysis from yesterday for why many jurisdictions are finally confronting the need to make changes in their adult guardianship policies and laws,  here is my take on additional reasons. Will Pennsylvania enact Senate Bill 884 this session to get the ball rolling on reform?

Troubled histories have emerged across the nation.  Public concern has grown around the need for more careful consideration of the roles played by guardians.  For example, events in recent years have highlighted the following problems:

 

  • In Las Vegas, Nevada, uncritical reliance on a few individuals to serve as appointed “professional” guardians was linked to manipulation and abuse of the incapacitated wards and misuse of the wards’ financial resources. Concerned family members alleged corruption and their advocacy drove a reluctant system to examine the history of appointments, leading to the indictment and arrests of a frequently appointed guardian, members of her staff and a police officer in February 2018. 
  • In New Mexico, two nonprofit agencies used for guardianship services were investigated; principals were indicted by the U.S. Attorney for thousands of dollars in theft from the estates of incapacitated individuals.  This in turn triggered a massive call for emergency reform of New Mexico guardianship law, with the new laws coming into effect in July 2018.
  • In Florida, complaints by family members and others presented to the Florida Legislature over several years, resulted in three successive years of reforms to Florida guardianship law. One dramatic example was a particular court’s uncritical reliance on “friends” of the court to be appointed as guardians and paid out of the wards’ estates. In some instances the court rejected appointment of available family members. In 2017, a jury awarded a verdict of $16.4 million against lawyers for breaching their fiduciary duties and charging unnecessary and excessive fees.   

 

The New Yorker magazine published a feature article in October 2017 on the Las Vegas history, criticizing the state’s reluctance to investigate and make timely changes in its systems for appointment and monitoring of so-called professional guardians.  The title of the article is eye catching: How the Elderly Lose Their Rights, by Rachael Aviv.

 

While location-specific news stories of scandals come and go, the persistence of guardianship problems points to systemic weaknesses that require modern, uniform standards.  Thirty years ago, the Associated Press published a six-part national investigative series entitled Guardians of the Elderly: An Ailing System.  The series revealed frequent failures to appoint counsel to represent an alleged incapacitated person and the lack of clear standards for guardians who serve as fiduciaries. 

Continue reading

September 20, 2018 in Cognitive Impairment, Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)