Thursday, May 20, 2021

Colorado: "Former Police Officers" Facing Criminal Charges For Conduct in Arrest of Woman with Dementia

On May 19, 2021,  the District Attorney's Office covering Loveland Colorado announced criminal charges against two officers who had already been removed from the force after details became public about their June 2020 arrest of a 73 year-old woman with dementia.  The primary arresting officer was charged with second degree assault causing bodily injury, attempt to influence a public servant (both being felony charges) and official misconduct, a misdemeanor, while a second officer who arrived midstream, was charged with misdemeanors, of "failing to intervene" in a case of excessive force, failing to report the use of force, and official misconduct, according to records from the DA's office.  

More details here:

 New York Times:  Former Police Officers Charged Over Arrest of Woman with Dementia

The Coloradan:  Arrest Documents - Former Loveland Officer Downplayed Force in Report on Karen Garner

 

May 20, 2021 in Cognitive Impairment, Crimes, Current Affairs, Discrimination, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Wednesday, May 19, 2021

Has Covid-19 Made Estate Planners (and, therefore, courses on estate planning) "Popular"?

I've had the same conversation lately with a number of lawyers working in estate planning or estate administration. Carlisle May 2021
 Today, while walking back from lunch downtown on an especially nice spring day in Carlisle, an attorney, a former Dickinson Law graduate, saw me and called out -- "Do you know any recent graduates looking for a job in estate planning?"  That's probably the 5th time I've been asked that question just in the last month.  

On the practical side, I'm hearing that the Covid-19 experience has made younger adults more realistic about the need for sound estate planning documents.  On a sadder note, especially in Pennsylvania counties hit hard by the virus, lawyers and their staffs are reporting being overwhelmed with the number of estate administrations needed, especially for medium-size estates, including those with assets but no written plan.  

 

May 19, 2021 in Consumer Information, Current Affairs, Estates and Trusts, State Cases | Permalink | Comments (0)

Monday, May 17, 2021

Texas Families Seek Legislative Changes to Better Assure Accountability for Seniors' Safety

Families in Texas have been hard at work the last two years, responding to the deaths of loved ones in Dallas-area senior-living communities who may have been killed by a serial murder suspect.  Organizing under the name "Secure Our Seniors Safety," they have pressed for an array of legislation to compel care-giving communities to provide greater accountability, including reporting suspicious activity such as employee concerns, where there is potential risk to vulnerable adults.  One of the bills, "Marilyn's Law," or HB 723 was named after one of the suspect's victims. Marilyn's daughter had initially been told her mother, who was living in a care center, had died of "natural causes." The death certificate was later amended, but the daughter only learned from news reports that her mother may have been one of the suspect's victims, suffocated with a pillow.

From a recent Dallas News article:

The first bill filed in response to a string of slayings at Dallas-area senior living communities passed the Texas Senate on Thursday and now awaits Gov. Greg Abbott’s signature.

 

For the families who say their loved ones were killed by a serial murder suspect, it’s a moment more than two years in the making. . . .

 

The bill passed Thursday is named for Pangburn’s mother, Marilyn Bixler. Marilyn’s Law, or HB 723, was introduced by two Collin County lawmakers — Sen. Angela Paxton and Rep. Jared Patterson — after The Dallas Morning News first reported Pangburn’s story.

 

The new law will require officials to notify next of kin if a cause of death is amended.

The bill was signed into law by the Texas Governor on May 15, 2021.  

Chemirmir, a suspect in at least 17 murder, theft or attempted murder cases, awaits trial because of delays related to Covid-19,  according to news reports, including national news profiles. 

For more on related legislation pending in Texas, see "Death Certificate Bill Filed in Response to Chemirmir Case Passes in Austin." 

 

 

May 17, 2021 in Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, May 10, 2021

What Happens to Social Security Benefits If the Beneficiary Goes to Jail or Prison?

This semester at Dickinson Law, I've been teaching a comparative law module on Social Security Benefits.  We've been spending more time than usual examining issues associated with basic "retirement benefits" rather than the more complicated topics of Social Security Disability (SSD) and Supplement Security Income (SSI) benefits.  

A group of us ended the semester with an interesting hypothetical.  Imagine that a retired, older client has a DWI -- his second within some number of years -- involving property damage and, thankfully, no direct endangerment to anyone's life or safety.  Assume a damaged mailbox or telephone pole. The state law might treat that as a misdemeanor, but because it is a second offense, it could still mean substantial jail time.  The client is thinking about pleading guilty, even if the sentence is 60 to 90 days.  The older client might be thinking "the faster I get this over, the faster I can get home and headed back in the right direction with my life."

Do lawyers advise such clients of the potential impact of incarceration, whether in a jail or prison, on his or her right to receive  basic Social Security benefits?  This was a new topic for me and of course that sent me scurrying for information.  Here's what I've read so far:

  • The Social Security Administration has a December 2019 brochure, entitled "What Prisoners Need to Know."  
  • Federal statutory law currently provides, at 42 U.S.C. Section 402(x)(1)(A), that "no monthly benefits shall be paid" to any individual who is "confined in a jail, prison, or other penal institution or correctional facility pursuant to his conviction of a criminal offense" for 30 continuous days or more.  Does this mean the trigger for loss of benefits is 30+ days of confinement for any crime, even a misdemeanor? While a related regulation, at 20 CFR Section 404.468, provides that no monthly benefits shall be paid if the confinement is for a "conviction of a felony," (my emphasis added) it may be that regulation's language reflects pre-1999 statutory law.  See e.g., amendments to Section 402(x) set forth in  P.L. 106-170 (Dec. 17, 1999), 113 Stat. 1860, an act with the ominous name of "Ticket to Work and Work Incentives Improvement Act." 
  • Cases explain that since 1983, the statutory mandate to suspend payments applies to basic retirement benefits, as well as SSD and SSI, and can also trigger a demand for refunds of any SS program funds "overpaid" during confinement, potentially reducing any future benefits the individual would otherwise receive once out of  jail. See e.g., Zipkin v. Heckler, 790 F.2d 16 (2d Cir. 1986). 
  • Attempts to challenge the application of Section 402(x) by arguing the law violates substantive due process, equal protection or is unconstitutional as a bill of attainder or ex post facto law have not met with success.  See e.g., Butler v. Apfel 114 F.3d 622 (9th Cir. 1998).

Back to our hypothetical.  The client might be planning to go home after 30, 60, 90 days or more in jail, but what if the client was depending on SS retirement income -- reflecting his life-time work record -- in order to keep making house payments for that time? 

Originally the theory of suspending federal SS payments focused on "disability" payments, because the confined individuals were being maintained at public expense and their inability to work is a consequence of their criminal conviction, not their disability.  But what of the 1983 amendment, expanding the suspensions to SS retirement income?  In the Zipkin case linked above, at page 18-19, the Second Circuit rejected any distinction:

"We can perceive no reason why prisoners whose retirement benefits are suspended would have a need for replacement of income while prisoners whose disability benefits are suspended do not.  Rather, prisoners, as a group, do not have the need for a continuing source of income that nonprisoners typically may have. . . .  Social Security retirement benefits are designed to satisfy certain baseline economic needs, reasonably predictable when a worker retires. . . . They are not benefits held in trust and payable per se." 

It is a tough world, right?  But does it need to be this tough?  According to the Social Security Administration's recent statistics, among elderly Social Security beneficiaries, "21% of married couples and about 45% of unmarried persons rely on Social Security for 90% or more of their income."  Feel free to add your own thoughts in the "comments."

May 10, 2021 in Crimes, Current Affairs, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Retirement, Social Security, State Cases | Permalink | Comments (0)

Tuesday, May 4, 2021

Caregivers React to Loveland Colorado Police Treatment of Aging "Shoplifter"

I've had several recent opportunities to talk with individuals serving as primary caregivers for family members who have varying stages and types of neurocognitive disorders, including but not limited to age-associated dementia.  One common concern in these conversations has been "that could have been my family member."

They are referring to news reports and body-cam videos of two officers in Loveland, Colorado in June 2020, as they apprehended, handcuffed, and took down "in a controlled manner" (the officers' description) a disoriented 72-year old woman. The officers were intent on arresting the woman following a report of her alleged "shoplifting" attempt of $14 dollars' worth of items at a local Walmart.   

According to the federal civil rights suit filed on April 16, 2021, the actions of the police officers fractured Karen Garner's left arm, dislocated her shoulder, and terrified her.  She was left for hours, crying and begging to go home while handcuffed in a booking cell, with no medical assistance offered or provided.  One booking room video shows the officers laughing and commenting about the body-cam footage.

Such conversationa explained what many caregivers were thinking about when they learned what happened to the "frail little thing" (the officer's word), the 5 foot tall, 80 pound woman who had earlier been diagnosed with "mild" dementia:

  • It could have been a lawyer's uncle, who has PTSD following return from tours of military duty and an IED injuty in Afghanistan;
  • It could have been a colleague's father, who was diagnosed with FTLD causing him to lose inhibitions, sometimes involving confusing behavior in public;
  • It could have been an older friend who recently needed help because she could not find her way through the "new" self-checkout system at the grocery store;
  • It could have been a member of my family, as my sister related to me a story I had not heard before, about how our mother, distracted by a cell-phone call, walked out of a grocery store without paying for groceries and didn't realize that until after she had loaded them into her car;
  • It "was" a man in his  60s with early onset dementia who wandered away from his home one night, only to be arrested for loitering and placed in a special containment area of the jail, where he was beaten to a pulp during the night by his cellmate (as I have written about before, here).

Continue reading

May 4, 2021 in Cognitive Impairment, Crimes, Current Affairs, Dementia/Alzheimer’s, Discrimination, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Ethical Issues, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases | Permalink | Comments (1)

Thursday, April 15, 2021

Aid in Dying in Montana

Kaiser Health News ran an interesting story about aid in dying in Montana.  Getting a Prescription to Die Remains Tricky Even as Aid-in-Dying Bills Gain Momentum

[I]n 2009, the Montana Supreme Court had, in theory, cracked open the door to sanctioned medically assisted death. The court ruled physicians could use a dying patient’s consent as a defense if charged with homicide for prescribing life-ending medication.

However, the ruling sidestepped whether terminally ill patients have a constitutional right to that aid. Whether that case made aid in dying legal in Montana has been debated ever since. “There is just no right to medical aid in dying in Montana, at least no right a patient can rely on, like in the other states,” said former state Supreme Court Justice Jim Nelson. “Every time a physician does it, the physician rolls the dice.”

The article discusses the legislative efforts on both sides of the issue. Fascinating story!

April 15, 2021 in Advance Directives/End-of-Life, Consumer Information, Crimes, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 22, 2021

The "Forgotten for COVID" Elders?

Despite projects to vaccinate those elders who are homebound or lack internet access, we are still lagging behind on reaching them, according to a story today in Kaiser Health NewsCountless Homebound Patients Still Wait for Covid Vaccine Despite Seniors’ Priority starts with the good news-recognizing the unique outreach efforts by hospitals, health systems, and paramedics, for example. These folks are home are highly vulnerable. Described by one expert in the article as a "hidden group", they are at great risk, "[b]y virtue of their age and medical status, these seniors are at extremely high risk of becoming seriously ill and dying if they get covid-19. Yet, unlike similarly frail nursing home patients, they haven’t been recognized as a priority group for vaccines, and the Centers for Disease Control and Prevention only recently offered guidance on serving them." The article notes that those professionals whoa are regularly in contact with them are not those with access to vaccines.  Medicare's reimbursement rates for time-consuming house calls doesn't allow the health care professionals to recoup their costs, notes the article.  Not only that, knowing the storage requirements for the vaccines doesn't mean a health care professional can just hop into their car and drive around with the vials in a cooler.

So this brings us to this story, a new hero for all of us! Last week in the New York Times, Woman, 90, Walked Six Miles in the Snow for a Vaccine
explained how after that recent snow storm, driving was out for her, but given all her previous failed efforts to get the vaccine, she wasn't going to miss this opportunity.

Where's Rosie the Riveter when we need her?? Surely "we can do it" or at least do better?

February 22, 2021 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Thursday, February 18, 2021

Upcoming Webinars

Register now for two upcoming webinars.

1. Webinar: Financial Protection for Older Adults During the COVID-19 Pandemic set for Feb 23, 2021 at 1 eastern. 

Join experts from the Consumer Financial Protection Bureau (CFPB), the Federal Communications Commission (FCC), and ACL on Tuesday, February 23 at 1 pm ET for a free webinar on financial protection of older adults during the COVID pandemic. The FCC will begin the program with an overview of coronavirus-related phone scams targeting older adults. The CFPB will share resources to help older adults address the financial impact of the pandemic. HHS will conclude the webinar with a discussion of the role of the aging services network.

Click on FCC live link to join the webinar on Feb 23 at 1 eastern.

2. A series of 3 webinars from the DOJ Elder Justice Initiative;

  • March 4th 2pm EST  |  Programs for Older Adults Who Have Experienced Financial Exploitation. Learn about three distinct programs designed specifically for older adults who have experienced financial exploitation. Register here.
  • March 23rd 2pm EST  |  The Path Forward: One MDT’s Journey to Address the Impact of Racial Injustice on Their Work. The Hennepin County Minnesota Adult Protection/Law Enforcement Multi-Disciplinary Team “MDT” provides a model case study of the impact of racial injustice on their work as an elder abuse MDT in Minneapolis. Register here.

  • April 13th 2pm EST  |  Tackling Transnational Robocall Scams: The Importance of State and Federal Partnerships Features a Federal and State partnership that successfully fought against computerized autodialing “robocall” scammers.  Register here

February 18, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Federal Statutes/Regulations, Programs/CLEs, State Cases, State Statutes/Regulations, Webinars | Permalink | Comments (0)

Wednesday, February 17, 2021

More COVID articles

First, good news from California. Recognizing the issue with elders who may not be able to get to vaccine sites (or sign up online....), Kaiser Health News reports on one solution in California.  Vaccines Go Mobile to Keep Seniors From Slipping Through the Cracks

The team of county nurses and nonprofit workers is targeting Contra Costa County residents who are eligible for covid vaccines but have been left out: residents of small assisted-living facilities that haven’t yet been visited by CVS or Walgreens, and occasionally people who live in low-income senior housing. The retail pharmacy giants have a federal government contract to administer vaccines in most long-term care facilities.

Launched a few weeks ago, the strike team moves through each vaccination clinic with practiced choreography. At a small group home in Antioch recently, a nurse filled syringes while another person readied vaccine cards and laid them on a table. An administrative assistant — hired specifically for these clinics — checked everyone’s paperwork and screened them for symptoms and allergies before their shots, logging them into the state’s database afterward. After the shots, a strike team member told each person when their 15 minutes of observation was up.

The endeavor is going to take time because there are so many of these facilities, many of which have just a handful of residents.  It may be slow-going, but it's going!!!!

So that was the good news. Now for the not-so-good, but not surprising news from this article also published in Kaiser Health News: Family Caregivers, Routinely Left Off Vaccine Lists, Worry What Would Happen ‘If I Get Sick’.

Tens of thousands of middle-aged sons and daughters caring for older relatives with serious ailments but too young to qualify for a vaccine themselves are  ...  terrified of becoming ill and wondering when they can get protected against the coronavirus.

Like aides and other workers in nursing homes, these family caregivers routinely administer medications, monitor blood pressure, cook, clean and help relatives wash, get dressed and use the toilet, among many other responsibilities. But they do so in apartments and houses, not in long-term care institutions — and they’re not paid.

““In all but name, they’re essential health care workers, taking care of patients who are very sick, many of whom are completely reliant upon them, some of whom are dying... Yet, we don’t recognize or support them as such, and that’s a tragedy.”

If the caregiver is older and meets the age-threshold for the caregiver's particular state, then the caregiver is eligible for vaccination that way. But the younger caregivers are out of luck right now.  This is an important article. Read it!

February 17, 2021 in Cognitive Impairment, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, February 15, 2021

What Did NY Cause When Transferring COVID Patients From Hospitals to SNFs?

Read these three articles, to get a full picture of what happened. First, the AP story: AP: Over 9,000 virus patients sent into NY nursing homes. Next, the CNN story: New York governor's top aide apologizes and says administration 'froze' after inquiries on Covid-19 deaths at long-term care facilities. Finally, Politico's story: Top Republicans call for Cuomo's ouster following nursing home revelation.

This follows the release a few weeks ago of a report by the NY AG that indicated the state had failed to accurately count deaths.  The NY AG report is available here

 

February 15, 2021 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (1)

Monday, February 8, 2021

Wrongful Life Litigation

A couple of weeks ago the New York Times ran this article,  Filing Suit for ‘Wrongful Life’, which asks this question: "More Americans are writing end-of-life instructions as the pandemic renders such decisions less abstract. But are medical providers listening?" The article features one case in litigation where the surviving spouse claimed that the health care providers failed to honor the patient's directive claiming the health care providers "disregarded a New York State MOLST — medical orders for life-sustaining treatment — form and his spouse’s explicit instructions to a doctor who called to seek her guidance."  The article gives a good explanation of the issues and a review of prior cases on similar topics. This is an important issue and I'm going to have my students read the article.

February 8, 2021 in Advance Directives/End-of-Life, Consumer Information, Current Affairs, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (1)

Thursday, February 4, 2021

NY Nursing Homes and COVID

A couple of recent articles about NY SNFs will make you stop and think.... hmmmm.. First, Politico noted a recent NY AG report New York undercounted nursing home deaths by as much 50 percent, report finds.. Nursing Home Response to COVID-19 Pandemic report includes preliminary findings

OAG’s preliminary findings are:

» A larger number of nursing home residents died from COVID-19 than DOH data reflected.

» Lack of compliance with infection control protocols put residents at increased risk of harm during the COVID-19 pandemic in some facilities.

» Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings4 had higher COVID-19 fatality rates than facilities with higher CMS Staffing ratings.

» Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm during the COVID-19 pandemic in some facilities.

» Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm in some facilities.

» The current state reimbursement model for nursing homes gives a financial incentive to owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing their own profit) instead of investing in higher levels of staffing and PPE.

» Lack of nursing home compliance with the executive order requiring communication with family members caused avoidable pain and distress; and,

» Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm in some facilities and may have obscured the data available to assess that risk.

Then consider this article in the Washington Post. Andrew Cuomo’s bad ‘who cares’ answer on coronavirus nursing home data

Facing a brutal report from his own party’s state attorney general that said the state had undercounted nursing home deaths from the virus, Cuomo essentially argued that it’s neither here nor there.

“Look, whether a person died in a hospital or died in a nursing home, it’s — the people died,” Cuomo said. “People died. ‘I was in a hospital, I got transferred to a nursing home, and my father died.' ‘My father was in a nursing home, got transferred to a hospital, my father died.’ People died.”

It does matter. As the article notes "there are major and very valid questions about whether nursing home policies led to unnecessary ones. To the extent that more deaths occurred in or came from that setting, it allows us to evaluate how significant that problem was and how much corrective action is needed."

February 4, 2021 in Consumer Information, Current Affairs, Health Care/Long Term Care, Other, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Tuesday, January 26, 2021

Medically Vulnerable and in Prison

There have been some stories about the impact COVID is having on the prison population.  A news station in Denver, CO ran this story a while back, Broncos players join campaign to release medically-vulnerable inmates during pandemic. The ACLU in Colorado has an effort underway to get the Colorado governor to grant clemency to low-risk prisoners.  The sidebar on the ACLU page gives examples of folks in prison who are medically-compromised but likely low risk if released.  The Marshall Project has a state by state list of COVID in prisons, concluding about 20% of prisoners have COVID. The Federal Bureau of Prisons also has information covering COVID in prisons, which includes their modified operations plans. Although in person visits were suspended, a November update indicated those would be resumed, with safeguards. With the latest surges, I expect those will again be suspended. 

And although prisons are "COVID hotspots," prisoners may not be high in priority for the COVID vaccine per a recent article in the Washington Post, Prisons are covid hot spots. But few countries are prioritizing vaccines for inmates.

Since this is the elderlawprof blog, are you wondering what this has to do with Elder Law? Just google "elderly prisoners and covid" and look at the results. Here are a few:

January 26, 2021 in Consumer Information, Crimes, Current Affairs, Federal Cases, Federal Statutes/Regulations, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Thursday, January 7, 2021

Webinar on Elder Abuse: Prevention, Intervention, and Remediation

Mark your calendars for January 21, 2021 at 2 p.m. eastern for a webinar on Elder Abuse Prevention, Intervention, and Remediation from the National Center on Law and Elder Rights.

Everyone who works with older adults has a role to play in prevention, intervention, and remediation of abuse, neglect, and exploitation. Helping starts with understanding the landscape of elder abuse and the service providers and systems involved in addressing abuse. This legal basics training will provide an overview of the fundamentals of abuse, neglect, and exploitation and the signs and signals of abuse that attendees can reference in their daily lives and work.

At the end of this training, participants will be able to:

  • Describe the three stages of responses to abuse
  • Apply basic definitions of abuse, neglect, and exploitation
  • Identify risk factors or signs of abuse, neglect, or exploitation
  • Identify the differences between undue influence, exploitation, and fraud
  • Describe added risks in a time of COVID-19

To register, click here.

January 7, 2021 in Consumer Information, Crimes, Current Affairs, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Webinars | Permalink

Thursday, November 19, 2020

Stan Lee: litigation over the last years of his life

I love the Marvel movies and always enjeoyed seeing the cameos of Stan Lee in the movies.  I'd heard stories about the last few years of his life.

The Last Days of Stan Lee: A heartbreaking tragedy about the (alleged) abuse of the Marvel Comics creator by those who swear they loved him opens with the telling of a video of Mr. Lee filmed at a Comic Con, followed a few days later by a story in another publication.  The article notes that almost 2 years after Mr. Lee's death, there are many unanswered questions and several cases pending in courts:

[A] half-dozen civil suits are pending and a criminal elder-abuse prosecution by the Los Angeles County District Attorney’s office remains mired in pretrial maneuverings. The courts have yet to shed light on many of the details and the veracity of the elder-abuse charges against several people. Elder-abuse cases are difficult to bring to trial, tough to litigate and hard to win. Was Stan Lee, like 1 in 10 Americans over age 60, a true victim of elder abuse, which can include physical violence, emotional torment, financial exploitation and willful deprivation? Plenty of evidence and testimony suggests that may be true.

The article details the decades of his career and his personal life. The article focuses on Mr. Lee's relationship with those close to him, including his daughter..  As the story wraps up, the writer tells us

THE LAWSUITS churn through the system. Delays give way to delays, and the accused sit mostly at home like the rest of us this year. As with so many elder-abuse cases, those involving the Lee estate will likely come down to “he said, she said.” Except, in this situation, there’s a three-ring circus of barkers and performers who may not have had Lee’s best interest at heart, in a charade that went on for years. Call it the long con, but “those types of relationships are much more difficult to pinpoint as being perpetrators,” said elder-abuse prosecutor Paul Greenwood. “I always say that the longer the victim and suspect have known each other, the more difficult it becomes to establish beyond a reasonable doubt that undue influence was exerted over that person, because sometimes loyalty is rewarded.”

In a less lawyerly explanation, the villain in this story is love. Abuse of the elderly routinely cloaks itself in love, which is, in many cases, returned by the victim. The perpetrators might even call love their motivation.

It will be a while before we know the full story (if ever). Stay tuned.

November 19, 2020 in Consumer Information, Current Affairs, Elder Abuse/Guardianship/Conservatorship, Estates and Trusts, Health Care/Long Term Care, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, September 28, 2020

Guardianship Court Monitoring Survey

Two researchers are collecting data on court monitoring involving conservatorships and guardianships.

The National Center for State Courts would like to learn about your experiences with court monitoring practices of guardians and conservators.

This survey is part of the research that [two researchers] are conducting in preparation for the 4th National Guardianship Summit to be held in May 2021, at the Syracuse University Law School.

Please answer the questions with reference to the jurisdiction you are most familiar with. Responding to the survey will take less than 15 minutes of your time. You will not be identified in any manner, as findings from the study will be presented only in the aggregate.

The researchers acknowledge the assistance of the State Justice Institute in conducting this survey.

 

September 28, 2020 in Cognitive Impairment, Consumer Information, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Thursday, June 18, 2020

Upcoming Webinar: Extreme Home Takeovers - Dealing with "Concerned" Relatives

On Monday, June 22, 2020, I'm joining the 3rd Annual Memorial Elder Abuse Sympsium hosted by Legal Aid Services of Oklahoma and being delivered as a webinar over the course of several sessions.  On Monday, the first set of speakers includes deeply experienced professionals in banking and securities, both potential avenues for elder fraud, as well as Judge Scott Roland of the Oklahoma Court of Criminal Appeals.  I follow them with the topic "Extreme Home Takeovers - Dealing with Concerned Relatives" -- the clever title supplied by our hosts!  

I'll be offering comparative statutory and common law approaches for recovering a house. including my own experiences while supervising Dickinson Law's Elder Protection Clinic.  The need is usually triggered by a transaction often tied to the worries of the older person, hoping or believeing that a family member, friend or new "befriender" would be more likely to save them from the dreaded nursing home if they give the hoped-for-caregiver "the house."  I'll be using cases from Ireland, Pennsylvania, Oklahoma (of course) and beyond for strategies, and discussing everything from filial support laws, to improvident tranaction laws, to the common law concept of failure of consideration in "support deeds." 

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June 18, 2020 in Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, International, State Cases, State Statutes/Regulations | Permalink | Comments (0)

Monday, June 8, 2020

Oklahoma Legal Aid Services Update: 3rd Annual Memorial Elder Abuse Symposium Goes Virtual, Starting June 15

This year, the Sonya L. Patterson Elder Abuse Symposium hosted annually by Legal Aid Services of Oklahoma, will take place over the course of several weeks, in bite-size programming, rather than in a single, all-day conference format.  In light of the online setting, the organizers are also able to open up registration and attendance to interested people outside of Oklahoma; however, there are limits on the number who can attend each session, so I recommend registering early. In past years, the symposium has drawn an audience of attorneys, law enforcement and social workers, with CLE credits available.

I'm very pleased for the opportunity to be a speaker this year. In addition to attorneys and judges, the speakers include health care professionals and bankers.  The program honors the life and advocacy of a young Oklahoma public interest attorney, Sonya L. Patterson, who passed away far too soon in 2015, as the result of an accident at the age of just 30. 

Here's the line up for the midday Symposium Webinar Series , with all sessions taking place on Central Daylight Savings Time:

Session 1: Monday, June 15th (11:00 am to 1:45 pm)

  1. The Psychic Effect on Victims of Elder Abuse by Family and/or Caregivers- Dr. Nancy Needell, M.D., Weill Cornell Medicine
  2. Attorney Responsibility to Client’s Ward or Principal- Rick Goralewicz, Staff Attorney, Legal Aid Services of Oklahoma

 

Session 2: Monday, June 22nd (11:00 am to 1:15 pm)

  1. Financial Exploitation of the Elderly- Justice Scott Roland, Oklahoma Court of Criminal Appeals with Elaine Dodd, Executive Vice President/ Fraud Division at Oklahoma Banker's Association and Jennifer Shaw, Oklahoma Securities Commission
  2. Extreme Home Takeover: Dealing with the “Concerned Relative”- Katherine C. Pearson, Professor of Law at Dickinson Law, Pennsylvania State University, Carlisle Pennsylvania

 

Session 3: Wednesday, June 24th (11:00 am to 1:15 pm)

  1. Elder Abuse General Topic- Stacey Morey, Oklahoma Attorney General’s Office, Chief of Consumer Protection Division
  2. Experts: Identifying and Utilizing in Elder Abuse Litigation- Kara Vincent, Attorney, Barber and Bartz

 

Session 4: Monday, June 29th (11:00 am to 1:15 pm)

  1. Domestic Violence and Seniors- Melissa Brooks, Staff Attorney at Legal Aid Services of Oklahoma and Gail Stricklin, Attorney at Law
  2. Abuse in Institutional Settings- William Whited, State Long Term Care Ombudsman and Nicole Snapp-Holloway, Attorney at Maples, Nix and Diesselhorst

 

Session 5: Wednesday, July 1st (11:00 am to 1:15 pm)

  1. Incompetency, Incapacity and Vulnerability- Mark Holmes, Attorney at Holmes, Holmes and Niesent, PLLC, Travis Smith, Attorney at Holmes, Holmes and Niesent, PLLC and Cathy Wood, Adult Protective Services
  2. Isolation and Loneliness- Laurel Dinkel, LCSW, Norman, Oklahoma

Click HERE for access to registration information for individual sessions or  the entire series. My thanks to Oklahoma Legal Aid Staff Attorney Rick Goralewicz for the invitation.  

June 8, 2020 in Advance Directives/End-of-Life, Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Housing, State Cases, State Statutes/Regulations, Statistics, Webinars | Permalink | Comments (0)

Saturday, June 6, 2020

NYT: "Detecting" the Reasons for a Death in Nursing Home

From a sad, powerful story about one of many deaths at Isabella Geriatric Center, carried in the New York Times:

A little after 1 in the afternoon, Aida Pabey got the call from the nursing home: Her mother was not going to make it. It was April 6, nearly four weeks after the state had barred all visitors to nursing homes, and Aida and her sister, Haydee, had been struggling to get even the most basic information about their mother. Was she eating? Had the coronavirus reached her part of the home?

 

Now this dire call. Just the day before, the sisters had been assured by an aide that their mother was “fine.”

 

They were both detectives in the New York Police Department, 20-year veterans. They were used to getting information, even from people determined to withhold it. But the nursing home had been a black box.

 

They raced to the home. Haydee got there first and managed to get upstairs. Aida, arriving second, identified herself as a crime scene investigator and brought safety gear. “I had my face shield, my bootees, my mask, my gloves,” she said. The security guard refused to let her in. “No. It was, ‘No way.’”

For more read, When Their Mother Died at a Nursing Home, 2 Detectives Wanted Answer.  As one of our Blog's readers has commented recently, "we need to go a step deeper to the ROOT cause of these serious breaches of safe practices in care facilities."

June 6, 2020 in Cognitive Impairment, Consumer Information, Crimes, Current Affairs, Dementia/Alzheimer’s, Elder Abuse/Guardianship/Conservatorship, Ethical Issues, Health Care/Long Term Care, Housing, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)

Friday, June 5, 2020

Must Any Public "Right to Know" the Covid-19 Infection Status of LTC Facilities Depend on Legislation?

Under the best of circumstances, it is difficult to make a decision about whether to place a fragile loved one in a care community.  With COVID-19, such a decision can be even more difficult,  as some states states (and some facilities) have resisted making public the names of long-term care facilities where residents or staff have been diagnosed with COVID-19.

In Arizona, a "right to inspect public records" suit was filed on May 5, 2020 by news organizations, seeking to review "public records" that show the number of COVID-19 positive residents at nursing care institutions, as well as the number of transfers made between such facilities and Arizona hospitals.  They were not requesting the identity of the residents; however, disclosing records containing the numbers would disclose the names of the facilities. That state's Governor has reportedly taken the position that not disclosing the COVID-19 infection history of facilities by name is "in the best interest of public health." 

On May 29, Maricopa County Superior Court Judge Christopher Coury ruled against the news organizations.  In the 23-page opinion in CV 2020-005385, Judge Coury concluded with these interesting paragraphs: 

72. Both Plaintiffs and Defendants have asserted legitimate positions in this action, particularly given that the underlying issues are important and weighty in the lives of Arizonans. It is beyond dispute that Arizonans who have parents, aunts, uncles, friends, neighbors, and loved ones living, or who may in the future be placed, in a Facility to care for them want, and justifiably deserve, to know how that Facility and its residents have fared during the Covid-19 public health emergency. As a son, nephew, friend, and neighbor, this judicial officer understands, respects, and empathizes with the need for Arizonans to have access to the information contained in the Records. Fortunately, this need of family and caregivers has been mitigated, if not eliminated, by EXECUTIVE ORDER 2020-35, which requires Facilities to provide Covid-19 information to residents, transferees, and applicants – and their guardians and next of kin – on a prompt basis.

 

73. It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans.

 

74. Arizona has been profoundly impacted by Covid-19. Lives have been lost. Women and men, old and young, have been sickened. The economy has been set back. Livelihoods of people have been compromised. Weddings and religious ceremonies have been delayed. Births and funerals have been isolated. Students have missed classes and graduations. Temptation exists to simply adopt jurisprudence that because Covid-19 has created such harm in our state and because Arizonans need information to battle Covid-19, sufficient justification exists to “look the other way” and require release of the Records. This judicial officer, however, will not and cannot do this. Indeed, were this judicial officer to ignore the law, Arizona’s Constitution – and its provisions of limited government and separation of powers – would be added to the list of Covid-19’s victims. The Court will neither countenance nor assist in this. Although difficult in the face of this devilish virus, fidelity to the Constitution and laws of the State of Arizona must prevail.

Therefore, Judge Coury entered judgment against the News Organizations as plaintiffs with respect to their request to produce records containing numerical information on COVID-19 infections at specific facilities, ruling that this was medical information that was "confidential and protected as a matter of law."  

The court found that a triable issue exists relating to other issues in the case, "specifically, Defendant's failure to produce  documents relating to information regarding the availability of PPE."  

Note:  I have not yet found a public website containing Judge Coury's decision, although it appears the order is not a restricted document.  If any of our readers come across such a site, feel free to let me know and I can amend this post to link to the full opinion.  

My thanks to Jon Dessaules, a  former Dickinson Law student, now a long-established Phoenix attorney, for assistance in tracking down information on this case.  

June 5, 2020 in Consumer Information, Current Affairs, Ethical Issues, Health Care/Long Term Care, Housing, Science, State Cases, State Statutes/Regulations, Statistics | Permalink | Comments (0)