Elder Law Prof Blog

Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court

In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."  

In Hornibrook v. Richard,  the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator.  The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons.  It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.

Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home.  The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.   

The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity."  The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity. 

Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale. 

The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:

"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."

One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling.  But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.  

Star Trek Legend Conservatorship Battle

I'm a fan of Star Trek. I'm not a hard core Trekkie, but I enjoy all the variations of Star Trek, whether movie or TV.  I was saddened to read about a conservatorship battle surrounding the trailblazing actor Nichelle Nichols, our beloved Lieutenant Uhura. Inside the heartbreaking conservatorship battle of a 'Star Trek' legend explains that "[a] three-way fight over Nichols’ fate involves her only child, Kyle Johnson, who is also her conservator; her former manager Gilbert Bell; and a concerned friend, Angelique Fawcette."  Here's a brief summary. "In 2018, Johnson filed a petition for conservatorship, arguing that his mother’s dementia made her susceptible to exploitation. In 2019, Bell filed a lawsuit against Johnson, alleging attempts to remove him from Nichols’ guest home, where he has lived since 2010, and 'aggressive and combative behavior.'"  Here's how the neighbor came into the suit. "Fawcette, a producer and actress who met Nichols in 2012, entered the legal fight opposing Johnson’s conservatorship petition. Fawcette pushed for visitation rights to spend time with her friend, and she argued for Nichols to stay in Woodland Hills — a scenario that has looked increasingly improbable."

The article goes in depth into her life and career and how the current litigation came to be, including declining health, a power of attorney, transfers of assets, a conversation about marriage and more.  Ms. Nichols is not the first famous person to be in the center of a conservatorship fight, nor will she be the last. 

Thanks to Julie Kitzmiller for sending me the link to the story.

Rental Assistance for Older Adults

With the eviction moratorium expiring in just a couple of days, we need to realize that housing insecurities impacts all age groups.  It's timely that the Consumer Financial Protection Bureau (CFPB) just released The Rental Assistance Finder. The website allows one to search for housing assistance by location, provides info on various topics, including about help in paying rent, payment agreements, and renter rights.

In addition, the National Center on Law and Elder Rights recently offered a training, Emergency Rental Assistance Programs and Other Tools to Prevent Evictions of Older Adult Tenants. Accompanying this training is the materials, Emergency Rental Assistance Programs & Other Tools to Prevent Evictions of Older Adult Tenants, CHAPTER SUMMARY • June 2021. This will be extremely helpful with the eviction moratorium expiring in days.

 

Filial Friday? Court Holds Son Liable for Attorneys Fees Incurred While Securing Medicaid Coverage for Father's NH Care

Pennsylvania courts use "filial" responsibility laws in, shall we say, creative ways, especially when they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents' nursing home care.  One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order  to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had transferred some $100k of her mother's funds to herself using a "valid" power of attorney, instead of paying the nursing home.

It probably doesn't make the court any happier if the defendant/child is also a lawyer.  

In the latest Pennsylvania decision decided by the Court of Common Pleas in Montgomery County,  Coates v. Salmon, No. 2018-16878, both the plaintiffs and the defendant are lawyers.  The trial court was asked to determine whether a son was personally liable for attorneys fees incurred when the son "engaged" another attorney, one experienced in Medicaid issues, regarding a penalty period assessed against his father.  The penalty made his father ineligible for 296 days in Medicaid funding for his nursing home care.  The lawyer was able to negotiate a reduced penalty period, with a successful argument that certain pre-admission transfers were not made in anticipation of applying for Medicaid.  The settlement reduced the dollar effect of the penalty by more than $68,000. 

Nonetheless, the son declined to pay the attorney his requested fee of $7,606, arguing there was no contract as the attorney had failed to comply with Pennsylvania Rule of Professional Responsibility 1.5(b) that requires "the basis or rate of the fee" to be "communicated to the client in writing, before or within a reasonable time after commencing the representation."  The lawyer-son seemed to be arguing, at least indirectly, that the only fee he'd "agreed" to pay was a $500 up-front "consultation" fee.  

The court agreed with the defendant-son on the contract issue, but granted the full sum of the requested fees as "reasonable" under a theory of quantum meruit.  And that's where Pennsylvania's filial support law came into play to support the court's decision on the son's liability:

Mr. Salmon [the defendant/son] contended, however, that any claim in quantum meruit could be asserted only against his Father, and not against Mr. Salmon personally. The argument was that Father was liable to the Nursing Home for any services not reimbursed by Medicaid and Father was therefore the sole beneficiary of the substantial reduction in the penalty.  It is true that to establish a claim in quantum meruit against Mr. Salmon, Plaintiffs [the Elder Law attorney and his firm] were required to show that he benefited from Mr. Coates's services. . . . Plaintiffs clearly met that requirement, however, because Mr. Salmon himself would have been liable to the Nursing Home for the $86,786 penalty if it had not been successfully diminished by Mr. Coates.  

 

The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . . .

 

This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment. . . . It is thus clear that without the reduction of the penalty to a relatively trivial sum, Mr. Salmon would have been liable for -- or, at the least, substantially at risk of liability for -- the amount of Nursing Home fees denied by Medicaid.  

 

Further, the imposition of liability on Mr. Salmon in quantum meruit is fully consistent with principles of equity. The evidence clearly showed that Mr. Salmon, in engaging Plaintiffs' services, understood his obligation to pay for those services. . . . And, most significantly, in Mr. Salmon's letter of May 6, 2016, responding to Plaintiffs' bill, he disputed the reasonableness of Mr. Coates's fees and the quality of his services, but he never suggested that Plaintiffs were billing the wrong person. . . . [I]t was compelling evidence that Mr. Salmon understood his responsibility to pay Plaintiffs' legal fees and that his later contention that only his Father was responsible was a post hoc excuse for his unwillingness to pay.

The detailed, well-written opinion dated June 23, 2021 is available at the link above, and the case is on appeal to Pennsylvania's intermediate court of appeals, the Superior Court.  In Pennsylvania, trial judges have the opportunity to write their full opinion, rather than just their final decision, after a party has appealed the ruling and after that party has identified all claims of errors.  In my experience, a detailed, well-written Pennsylvania trial court opinion has a good chance of being affirmed on appeal. For an additional perspective on this case, see the Elder Law Answer summary here.  

Analyzing Britney Spears' Conservatorship: How Should Courts Respond to Allegations of a Toxic Guardianship?

This summer, J. Collin Fulton, a rising 2L student at Dickinson Law, with a prelaw background in journalism, has been doing a fantastic job while working on projects with me.  He put together this very thoughtful overview of how Britney Spears' concerns, arising in the context of the California-based proceeding, may be relevant to the larger analysis of guardianships and conservatorships across the nation.  

From J. Collin Fulton:

In the areas of guardianship and conservatorship law, perhaps no recent case has captured the attention of the American public as thoroughly as the conservatorship of Britney Spears. The Pop singer’s conservatorship was established in California in 2008 and has become one of the best-known examples of how, under U.S. law, a person can have the management of both their personal life and financial affairs placed under the control of a court-appointed guardian/conservator, typically as a result of mental or physical conditions or advanced age.

While a legion of Ms. Spears’ fans has routinely called into question both the necessity and nature of the singer’s conservatorship, it was the release of the New York Times' 2019 documentary “Framing Britney Spears” which brought the details of Ms. Spears conservatorship to the attention of the broader public. I personally became aware following the Times’ publication on June 22nd of an article detailing how Ms. Spears herself feels about the conservatorship. Based on court records acquired by the NYTimes, the article details both Ms. Spears opposition to the continuance of her conservatorship in its present form as well as Ms. Spears claims concerning some of the effects the conservatorship has had on her life. Based on court documents going back to 2014, the NYTimes article reports that:

• Spears “feels the conservatorship has become an oppressive and controlling tool against her.”
• Spears has informed the court that, as a result of the conservatorship, she felt compelled to perform against her will and compelled to stay at a mental health facility against her will.
• The conservatorship restricted a broad range of Ms. Spears decision making, ranging from who she was allowed to date to the manner in which she could decorate her home.

Ms. Spears’s June 23 public testimony further cast the conservatorship in a negative light. In the testimony, the singer claimed that, against her will, she was forced to take mood-altering drugs and forced onto contraception. Ms. Spears again called for her conservatorship to be ended and generally for the laws surrounding conservatorships to be changed. This call has been echoed by numerous other singers in support of Ms. Spears, including Justin Timberlake, Halsey, Brandy, and Mariah Carrey, as reported by the BBC.

Given what Ms. Spears claims has transpired as a result of her conservatorship and the public support she has received, I became deeply curious about how a conservatorship can actually be terminated. Given the complexity of guardianship/conservatorship laws, this is a question without a simple answer.

First, state laws vary significantly regarding who, how, and why a person can be placed under a guardianship/conservatorship. As Ms. Spears’s case takes place in California, I focus there.

There are two types of conservatorships under California law: Lanterman-Petris-Short (LPS) and Probate conservatorships, the latter of which is exemplified by Ms. Spears’s situation.

Such conservatorships are typically permanent affairs in California; however, they can be terminated in the following ways:

• The conservatorship ends due to the death of the conservatee.
• A judge may end the conservatorship upon petition to do so resulting from the conservatee regaining the ability to manage their own affairs (The argument Ms. Spears appears to be currently making).
• A conservatorship of the estate can be ended if the conservatee ceases to possess any assets to protect.

Learning this raised a new question for me: why would a court allow a conservatorship such as Ms. Spears’s to continue given her allegations? I believe the answer to this question lies in the purpose of guardianship/conservatorship laws.

This purpose is perhaps best exemplified in the California “Handbook for Conservators,” which the state mandates for conservator cases. The Handbook has a clear message for every new conservator: “You have been appointed conservator because someone – your parent, spouse, child, or other relative or friend – needs help, and you are willing to lend a hand.” This simple message, in my opinion, captures the thought behind guardianship and conservatorship laws. There are, sadly, situations in which a person is unable to manage their affairs. Guardianships and conservatorships allow for a legal redress to such situations, enabling courts to appoint a trusted individual to provide assistance in such circumstances.

The California Handbook also highlights another important fact central to the functionality of conservatorships: “The position of conservator is one of great trust and responsibility. The court and conservatee are trusting you to follow the law and to act in the conservatee’s best interests.” Given the incredible responsibilities assumed by a guardian/conservator, it is indeed imperative that guardians/conservators execute their duties with the utmost understanding and respect for the individual's own values and goals, while also complying with the legal obligation to make decisions in the best interest of the individual they have been appointed to protect.

With the purpose of guardianships/conservatorships now understood, I turn back to Ms. Spears and the question of why, given her allegations, her conservatorship still remains. The answer is, simply, that legal process such as this take time.

Just as a court needed to consider a multitude of factors in determining that Ms. Spears should become a conservatee, the court must now perform proper inquiries into the allegations that Ms. Spears has raised and then determine an appropriate response to take based on the validity of these allegations. This is true not only for Ms. Spears, but for any person in a guardianship/conservatorship situation. Guardianships/conservatorships are serious affairs, ones in which a person’s ability to control their own lives have been taken from them and handed to another individual, hopefully one who is trustworthy and will act in their best interest. Should doubts emerge about the actions of a guardian/conservator, or indeed the necessity of an established guardianship/conservatorship itself, investigating the situation thoroughly is paramount to the integrity of not only the guardianship/conservatorship in question but also the legal system of guardianships/conservatorships at large.

Mr. Fulton concludes:  I thus believe that while a quick response from the court may satiate the immediate public outcry for change, a proper inquiry which establishes the truth and, in turn, enables the court to act based on the facts will not only improve Ms. Spears' situation but enhance public knowledge on the current state of guardianship/conservatorship laws in the United States.

ElderCaring Coordination Now a Law in Florida

Florida adopted eldercaring coordination legislation that went into effect last week on July 1.   Here's a brief description: "Elder-focused Dispute Resolution Process; Authorizes courts to appoint eldercaring coordinators & refer parties to eldercaring coordination; specifies duration of appointments; requires courts to conduct review hearings; provides for qualifications, disqualifications, removal, & suspension of coordinators; authorizes courts to award certain fees & costs of eldercaring coordination; provides immunity from liability for certain parties; requires Florida Supreme Court to establish minimum standards & procedures."

The summary of the bill expands:

The bill creates an alternative dispute resolution process for persons 60 years of age and older who are involved in certain legal proceedings. Specifically, the bill allows a court to appoint an eldercaring coordinator to assist in disputes that can impact an elder’s safety and autonomy.  The court must specifically define the scope of an eldercaring coordinator’s authority in its order of appointment.

An eldercaring coordinator may be appointed for up to 2 years, although a court has discretion to extend or suspend the appointment as needed. In order to be appointed as an eldercaring coordinator, an applicant must:  

• Meet a specified professional licensing requirement, such as membership in The Florida Bar or being a licensed nurse;
• Complete 3 years of post-licensing or post-certification practice;
• Receive training in family and elder mediation;
• Receive 44 hours in eldercare coordinator training, which must offer training on topics including, among other things:

• Elder, guardianship, and incapacity law;
• Family dynamics;
• Multicultural competency; and
• Elder abuse, neglect, and exploitation.

• Successfully pass a background check; and
• Have not been a respondent in a final order granting an injunction for protection against domestic, dating, sexual, or repeat violence or stalking or exploitation of an elder or a disabled person.

The bill provides that an eldercaring coordinator may be removed or disqualified if the coordinator no longer meets the minimum qualifications or upon court order.

The bill requires an equal amount of fees and costs for eldercaring coordination to be paid by each party, subject to an exception. If a court finds that a party is indigent, the bill prohibits the court from ordering the party to eldercaring coordination unless funds are available to pay the indigent party’s allocated portion. Likewise, cases involving exploitation of an elder or domestic violence are ineligible for a referral without the consent of the parties involved. The court must offer each party the opportunity to consult with either an attorney or a domestic violence advocate prior to accepting consent of the referral and the court is required to determine whether each party has given their consent freely and voluntarily.

When a court is determining whether to refer parties that may have an above-mentioned history that would otherwise preclude the referral, the court must consider whether a party has:

• Committed an act of exploitation or domestic violence against another party or any member of another party’s family;
• Engaged in a behavioral pattern where power and control are used against another party and that could jeopardize another party’s ability to negotiate fairly; or
• Behaved in a way that leads another party to reasonably believe he or she is in imminent danger of becoming a victim of domestic violence.

If the court refers a case to eldercaring coordination that involves a party who has any history of domestic violence or exploitation of an elder, the court must order necessary precautions to ensure safety of specified persons and property.  

The bill provides that all communications that meet specified requirements and are made during eldercaring coordination must be kept confidential. The bill provides that parties to the eldercaring coordination, including the coordinator, may not testify unless one of the enumerated exceptions applies. The bill also provides remedies for breaches of confidentiality.

The bill provides legislative findings and requires the Florida Supreme Court to establish minimum standards and procedures for training, qualifications, discipline, and education of eldercaring coordinators....

The full text of the new law can be accessed here.

New Elder Justice Resource Guide

The New York courts have released a new Elder Justice Resource Guide, "the result of collaboration between The Harry and Jeanette Weinberg Center for Elder Justice at the Hebrew Home at Riverdale and the New York State Unified Court System’s Division of Policy and Planning, and ... provide[s] a list of resources, information and support for New York’s judges, court personnel, and other legal professionals."

The 136 page guide is available online or as a pdf, and covers various topics. "The Elder Justice Resource Guide includes information about elder abuse, accessible courtrooms for older adults, capacity and confusion, effective communication, and available resources for older adults experiencing abuse. The Guide also includes a comprehensive directory of national, state, and local services available to older adults."  (I particularly was interested in pages 12, 16-18 where Stetson's own Eleazer Courtroom is mentioned!)

Lessons I Learned from F. Lee Bailey (Who Passed Away on June 3)

Early in my career, I had a ringside seat for was supposed to be a "big" trial for F. Lee Bailey, who passed away at the age of 87 earlier this week.  Reading about his career has brought back memories. 

In 1983, Mr. Bailey represented one of New Mexico's most prominent criminal defense lawyers of the time, William Marchiando, on libel allegations against the state's largest newspaper, The Albuquerque Journal.  My firm represented the Journal.  During the trial I was a mere "helper" (although I had a surprising opportunity to handle aspects of a post-trial motion).   The trial focused on an article where Mr. Marchiando's photo appeared prominently, just below a provocative headline, "Organized Crime Showing Interest in New Mexico."   

One consequence of suing a newspaper for libel is that every minute of the trial was covered by media, and that meant weeks of news coverage, a fact not lost on Mr. Bailey, who was premiering his new television show that same year, a program called "Lie Detector."

The 8-week trial took place in the southern New Mexico city of Las Cruces (on a change of venue from Albuquerque).  After 4 days of deliberations, the locally-selected jury voted, 10 to 2, that there was no defamation. The jurors included retired military, members of local farming and ranching families, and several hard-working school teachers. 

The newspaper took the position that truth was their defense, a decision that probably startled the plaintiff.  I recall hearings about admissibility of tape recordings of the plaintiff meeting with prisoners at New York City's infamous "Tombs," allegedly discussing organized crime-related "business," rather than matters pertaining to any representation of the defendants in their criminal cases.   One of the Journal's trial witnesses, via video-recording, was "Jimmy the Weasel" Fratianno, who was a confessed hitman for "the mob."  (I was flown one night, via a private jet, to conduct a pretrial interview of  "Jimmy" at an undisclosed location, one of the spookier events of my early career).  

Some of Mr. Bailey's obituaries mention his "photographic memory" and I saw that in action.  He handled direct and cross examination of witnesses without any notes, and, perhaps most impressively, would accurately quote lengthy sections of depositions when seeking to "impeach" a witness, again without any paper in his hand.  His oratory was delivered with a deep voice that had a touch of gravel in it, and he was always impeccably dressed.  

In contrast, the Journal's primary trial attorney (and my boss), Eric Lanphere, was much less showy.  Indeed, the publisher of the paper ruefully shook his head as his attorney crossed the courtroom one afternoon during trial, trailed by a floating, long piece of toilet paper stuck to one heel.  "That's my attorney -- sort of looks like Columbo, doesn't he?," he mused.  But Mr. Lanphere also had his own talents, and the key talent was being down-to-earth, rational, and equally oriented to details, albeit not necessarily delivered from memory.

My real lessons came during preparation for the post-trial hearings. We were responding to the plaintiff's attempts to reverse the verdict, claiming there was juror misconduct (ultimately an unsuccessful effort).  My task began with interviewing as many of the 12 jurors (and the alternates) as would speak to me, to get their take on the trial and deliberations.  Along the way, I asked them what they thought of Mr. Bailey's flair in the courtroom.  Usually the juror would smile and give me an account of some especially impressive detail of Mr. Bailey's performance.

Then I would ask, "how did Mr. Bailey affect your vote in the case?"  And each juror, regardless of their vote, quickly responded that as much as they enjoyed Mr. Bailey's "tricks," (their frequent label), they knew their job was to evaluate the evidence presented by witnesses and exhibits.  The trial judge had delivered those instructions with a very firm voice. The jurors made it clear to me they weren't going to allow themselves to be swayed by the performance of any attorney.  The "facts" mattered, and mattered especially, it seemed, when presented by the more humble attorney in the room.  

Pushing Back Against the Disappearance of the "County Home"

In Carlisle, a classic college town in Central Pennsylvania, the hottest topic at the moment is, surprisingly enough, the "county" nursing home.

"Save Claremont" signs outnumbered the political signs in the recent primary election.

A robust advocacy movement seeks to prevent the sale of Claremont Nursing & Rehabilitation Center, a publicly-administered facility with 282-beds to private enterprise.  In a detailed story carried by local newspaper, The Patriot News, both sides of the issue are making their pitches:  

 

The members of Citizens Saving Claremont are arguing the county not only can keep Claremont afloat, but with some effort, investment and leadership, they can make it thrive.

 

"It has been sustained for 192 years," said Tim Potts, one of the founding members of Citizens Saving Claremont. "This year, 2021, is the first year that we've had to use county money to support Claremont, and that's only on a temporary basis because of the impact of COVID." . . .

 

But that doesn't change the fact that Claremont is hemorrhaging money, Cumberland County Commissioner Gary Eichelberger said.  Projections show it will only get worse and will have to be propped up by taxpayer dollars.  

 

And the completion of a sales agreement could be just days away.

For some advocates, keeping the facility in public hands is about maintaining a commitment to citizens of all income levels, and they point out that Claremont's Medicare "star" rating has usually been higher than private enterprise nursing homes in the region.  As recently as 2002, as many as 40 of Pennsylvania's 67 counties had "public homes"; but, currently just 21 remain in county hands.

For more see Citizens Group Pushes to Save Claremont, published online behind a paywall on June 1, 2021 and on the front page of the traditional newspaper format on June 4, 2021.  

 

Unilateral Attempts to Change Scope of Services in Continuing Care and Life Plan Communities

With lockdowns being lifted in commercial arenas, I'm once again hearing from residents in Continuing Care Retirement Communities (CCRCs), also sometimes called Life Plan Communities, as well as other similar senior living settings.  The most frequently raised concern is "how can management of my community make major changes in services and amenities without asking us if we agree to a new contract?"  Sometimes I am able to recommend local legal counsel for the callers.

As a matter of theory, there's a traditional  "law-based" answer to this question, with state-specific tweaks.  And then there is what happens all too often in real life. 

Generally speaking, the law provides that unilateral attempts by one party to make significant changes in the parties' duties under a contract are not legally effective.  Here's one state Supreme Court's typical statement of the rule of law (written in the context of considering an employer's unilateral attempt to change an employment contract):

The cases dealing with employment contracts are merely part of the general rule that recognizes no difference between an express and an implied contract.... As a result, to effectively modify a contract, whether implied-in-fact or express, there must be: (1) an offer to modify the contract, (2) assent to or acceptance of that offer, and (3) consideration."

Demasse v. ITT Corp., 984 P.2d 1138, 1144 (Az. 1999).  As my law students know, "consideration" is a legal term of art, and generally means a "bargained for exchange." In the context of modification of existing agreements, this often involves new financial terms or mutual concessions in the parties' respective duties.

But, the real-life situation is that the party with the greater bargaining power simply ignores the bargaining process altogether. In employment contexts, that's the employer.  They treat their notice of major changes as "the new agreement" simply because no one objected.  That's not how the rule of law is supposed to work, but it does, all too often.  Indeed, I will confess that the very reason I started teaching Contract law was my growing familiarity with disputes in senior living scenarios that made me wonder if there was something about contract law I'd missed back in my own days as a law student.  There wasn't (although the full explanation would require a law review article) -- but the world keeps spinning along with the more powerful party in many commercial contexts able to avoid the contract because they are "in charge."  

Residents don't, however, have to put up with this.  Resident groups in individual CCRCs and those living in states where there are regional organizations have learned to flex their considerable muscle, both in negotiations with management and with state regulators or legislators.  I'm also hearing from more attorneys who are representing residents in negotiations, or when necessary, in arbitrations or on  lawsuits alleging breaches of contract and fiduciary duties.  Plus, I'm hearing from more states officials who are asking good questions.

It not a secret that I like CCRCs and I like them a lot.  I've visited CCRCs throughout the U.S. and they tend to be vital examples of senior living, offering community engagement, social networks, friendly-settings, caring service providers, and the reassurance of assistance if needed.  Many forms of senior living options are struggling with the impact of the pandemic, with enhanced pressures on facilities to balance their budgets. This is probably triggering a new upswing in attempts to make unilateral changes.  

I have worried, long before the pandemic, that an episodic  history of paternalistic or peremptory changes by management in CCRCs can undermine public confidence in this format as a viable alternative for seniors.  CCRCs have their highest value for consumers when residents are making the transition before becoming too frail to appreciated the amenities and services.  New residents may be unlikely to  "invest" in CCRCs if they lack confidence that promised services will be available when needed.  

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

 

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.
 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.  

 

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." 

 

 

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."

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

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!

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 News.  Countless 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?

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 4^th 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 23^rd 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 13^th 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

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!

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.