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Lawyer who can't find testators for over 500 wills can't toss documents, ethics opinion says BY DEBRA CASSENS WEISS JANUARY 27, 2020, 1:33 PM CST A New York lawyer who possesses more than 500 wills, many of them obtained by acquiring others’ law practices, can’t dispose of the documents after a fruitless search for the testators—people who have made wills—according to an ethics opinion by the New York State Bar Association. The Jan. 23 ethics opinion says the wills are property that must be safeguarded, Bloomberg Law reports. Some of the wills were prepared more than 70 years ago. Some were obtained from acquired law practices that had themselves obtained the wills from acquired practices. The lawyer has been unable to find the testators, executors or beneficiaries through a search of office records, the internet and the county surrogate’s court. The lawyer must retain the wills indefinitely “or act as the law may allow,” the opinion says. The opinion notes that lawyers can always seek court permission to dispose of property in a way that accords with the law. The opinion also refers to advice from a state bar committee that says lawyers can file wills with the appropriate surrogate’s court. Some county bar associations also maintain will registries where the wills could be filed. The clients should be notified of the filings in writing at their last known address, the bar committee said. The ethics opinion sums up its advice this way: “A lawyer may not dispose of wills, whose testators’ locations and/or circumstances are unknown. The wills constitute property, and the lawyer must safeguard the wills indefinitely unless the law affords the lawyer an avenue to file or otherwise dispose of the wills.”
Lawyer who can't find testators for over 500 wills can't toss documents, ethics opinion saysBY DEBRA CASSENS WEISS JANUARY 27, 2020, 1:33 PM CST Image from Shutterstock.com. A New York lawyer who possesses more than 500 wills, many of them obtained by acquiring others’ law practices, can’t dispose of the documents after a fruitless search for the testators—people who have made wills—according to an ethics opinion by the New York State Bar Association. The Jan. 23 ethics opinion says the wills are property that must be safeguarded, Bloomberg Law reports. Some of the wills were prepared more than 70 years ago. Some were obtained from acquired law practices that had themselves obtained the wills from acquired practices. The lawyer has been unable to find the testators, executors or beneficiaries through a search of office records, the internet and the county surrogate’s court. The lawyer must retain the wills indefinitely “or act as the law may allow,” the opinion says. The opinion notes that lawyers can always seek court permission to dispose of property in a way that accords with the law. The opinion also refers to advice from a state bar committee that says lawyers can file wills with the appropriate surrogate’s court. Some county bar associations also maintain will registries where the wills could be filed. The clients should be notified of the filings in writing at their last known address, the bar committee said. The ethics opinion sums up its advice this way: “A lawyer may not dispose of wills, whose testators’ locations and/or circumstances are unknown. The wills constitute property, and the lawyer must safeguard the wills indefinitely unless the law affords the lawyer an avenue to file or otherwise dispose of the wills.”
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ELDER LAW Why elder law is a growing, 'anything-can-happen practice' BY AMANDA ROBERT JANUARY 30, 2020, 2:53 PM CST As an elder law attorney, Kerry Peck frequently files cases involving older adults who are victims of financial abuse. In one of those cases, a retired professional whose wife had recently died found himself sitting next to a woman who was at least 20 years younger at church. Within weeks, she took him to his accountant and stockbroker to try to access his money and moved into his home. Peck requested an exam by a physician, who determined the man was cognitively impaired and filed for an emergency guardianship to freeze his assets. “People are getting more sophisticated in the way they exploit older adults,” says Peck, the managing partner of Chicago law firm Peck Ritchey. “I call these cases ‘sex for signature’ cases. That’s all this is, and it’s an epidemic.” Law and Aging logo As baby boomers age, a growing percentage of Americans are going to be facing the challenges that come along with aging. Are the American courts—and American legal professionals—ready for those challenges? Law & Aging is a new ABA Journal series examining these issues. Additional Resources • Commission on Law and Aging • Senior Lawyers Division Financial exploitation is just one component of elder law. It’s a growing area of practice that includes not only advance medical directives, estate planning, guardianship, probate and will contests, but also real estate, tax, employment, special needs, discrimination, domestic violence and Medicaid issues. The number of clients in need of these services is also skyrocketing, due in large part to the aging of baby boomers, the generation born from 1946 to 1964. According to the U.S. Census Bureau, there are currently about 73 million baby boomers. The oldest members of the group turn 74 this year, and by 2030, all of them will be at least 65. The Administration for Community Living’s latest report on older Americans also shows that the population of people who are 65 and older increased from 37.8 million in 2007 to 50.9 million in 2017. It estimates that total will reach 94.7 million in 2060. “Unlike most practices, elder law really focuses on the age of the people who we serve rather than the particular subject areas,” says Shirley Berger Whitenack, a partner at Schenck, Price, Smith & King in Florham Park, New Jersey, and a past president of the National Academy of Elder Law Attorneys. Whitenack, who started her practice in 1985, adds that unique issues facing baby boomers also make elder law different today. One of those issues arises from people of that generation living in a different financial reality than that of their parents, most of whom received pensions and Social Security retirement benefits. Many baby boomers will receive fewer benefits, she says, which could lead to problems with financing their long-term care at home, in assisted living facilities or in nursing homes. If they are not veterans or do not have long-term care insurance, they may have to rely on Medicaid once they run out of money. “Medicaid planning is a minefield, and it’s fraught with all kinds of traps for the unwary,” Whitenack says. “It really does call for counseling by good elder law attorneys.” Karen Buck is the executive director of SeniorLAW Center, a legal aid organization in Philadelphia that focuses on protecting the rights of the elderly. Many of her clients are living on $500 to $1,000 a month and face various challenges with mobility, transportation, language access, mental health and disability. “If you are facing any of those and you are on a fixed income, life is that much harder,” Buck says. “If you are about to lose your home, or someone scams you, or some other major legal issue has happened to you, it really can devastate your life. “That can be true of any low-income person, but especially of a lower-income elder person.” In addition to common challenges, Buck has seen a significant increase in clients raising their grandchildren, an issue she says is exacerbated by the opioid crisis in Pennsylvania. They often need help navigating complex family law matters, as well as related housing and health care issues. Camilla McRory, an elder law attorney with her own firm in Rockville, Maryland, agrees that “virtually every elder law case is like a bar exam question.” In a recent matter, she helped an elderly woman order a medical evaluation of her husband to determine whether he should be moved into a skilled nursing facility. He had been diagnosed with Pick’s disease, a type of age-related dementia that affects the frontal lobes of the brain, and became violent. elder law Image from Shutterstock.com. Once that was decided, McRory had to help the woman convince her husband to move as well as assist her in selling their house and purchasing a condo with less upkeep. While elder law has always been an “anything-can-happen practice,” McRory says the recent developments she has seen are with attorneys. They have grown more skilled, not only in the different practice areas that impact elderly clients, but also in their medical issues. “People think they are talking to a medical person sometimes because we have to learn so much of this stuff just to be able to serve our clients,” she says. “It’s important to convey how interdisciplinary and holistic this is.” Peck adds that attorneys who don’t practice elder law also need to understand cognitive impairment and how it can affect their clients and their matters. “You need to know your ethical obligations to determine if someone is mentally competent,” he says. “These issues are not limited exclusively to people who do estate planning or elder law, because people get old and people get sick.”
Why elder law is a growing, 'anything-can-happen practice'BY AMANDA ROBERT JANUARY 30, 2020, 2:53 PM CST Image from Shutterstock.com. As an elder law attorney, Kerry Peck frequently files cases involving older adults who are victims of financial abuse. In one of those cases, a retired professional whose wife had recently died found himself sitting next to a woman who was at least 20 years younger at church. Within weeks, she took him to his accountant and stockbroker to try to access his money and moved into his home. Peck requested an exam by a physician, who determined the man was cognitively impaired and filed for an emergency guardianship to freeze his assets. “People are getting more sophisticated in the way they exploit older adults,” says Peck, the managing partner of Chicago law firm Peck Ritchey. “I call these cases ‘sex for signature’ cases. That’s all this is, and it’s an epidemic.” As baby boomers age, a growing percentage of Americans are going to be facing the challenges that come along with aging. Are the American courts—and American legal professionals—ready for those challenges? Law & Aging is a new ABA Journal series examining these issues. Additional Resources • Commission on Law and Aging • Senior Lawyers Division Financial exploitation is just one component of elder law. It’s a growing area of practice that includes not only advance medical directives, estate planning, guardianship, probate and will contests, but also real estate, tax, employment, special needs, discrimination, domestic violence and Medicaid issues. The number of clients in need of these services is also skyrocketing, due in large part to the aging of baby boomers, the generation born from 1946 to 1964. According to the U.S. Census Bureau, there are currently about 73 million baby boomers. The oldest members of the group turn 74 this year, and by 2030, all of them will be at least 65. The Administration for Community Living’s latest report on older Americans also shows that the population of people who are 65 and older increased from 37.8 million in 2007 to 50.9 million in 2017. It estimates that total will reach 94.7 million in 2060. “Unlike most practices, elder law really focuses on the age of the people who we serve rather than the particular subject areas,” says Shirley Berger Whitenack, a partner at Schenck, Price, Smith & King in Florham Park, New Jersey, and a past president of the National Academy of Elder Law Attorneys. Whitenack, who started her practice in 1985, adds that unique issues facing baby boomers also make elder law different today. One of those issues arises from people of that generation living in a different financial reality than that of their parents, most of whom received pensions and Social Security retirement benefits. Many baby boomers will receive fewer benefits, she says, which could lead to problems with financing their long-term care at home, in assisted living facilities or in nursing homes. If they are not veterans or do not have long-term care insurance, they may have to rely on Medicaid once they run out of money. “Medicaid planning is a minefield, and it’s fraught with all kinds of traps for the unwary,” Whitenack says. “It really does call for counseling by good elder law attorneys.” Karen Buck is the executive director of SeniorLAW Center, a legal aid organization in Philadelphia that focuses on protecting the rights of the elderly. Many of her clients are living on $500 to $1,000 a month and face various challenges with mobility, transportation, language access, mental health and disability. “If you are facing any of those and you are on a fixed income, life is that much harder,” Buck says. “If you are about to lose your home, or someone scams you, or some other major legal issue has happened to you, it really can devastate your life. “That can be true of any low-income person, but especially of a lower-income elder person.” In addition to common challenges, Buck has seen a significant increase in clients raising their grandchildren, an issue she says is exacerbated by the opioid crisis in Pennsylvania. They often need help navigating complex family law matters, as well as related housing and health care issues. Camilla McRory, an elder law attorney with her own firm in Rockville, Maryland, agrees that “virtually every elder law case is like a bar exam question.” In a recent matter, she helped an elderly woman order a medical evaluation of her husband to determine whether he should be moved into a skilled nursing facility. He had been diagnosed with Pick’s disease, a type of age-related dementia that affects the frontal lobes of the brain, and became violent. Image from Shutterstock.com. Once that was decided, McRory had to help the woman convince her husband to move as well as assist her in selling their house and purchasing a condo with less upkeep. While elder law has always been an “anything-can-happen practice,” McRory says the recent developments she has seen are with attorneys. They have grown more skilled, not only in the different practice areas that impact elderly clients, but also in their medical issues. “People think they are talking to a medical person sometimes because we have to learn so much of this stuff just to be able to serve our clients,” she says. “It’s important to convey how interdisciplinary and holistic this is.” Peck adds that attorneys who don’t practice elder law also need to understand cognitive impairment and how it can affect their clients and their matters. “You need to know your ethical obligations to determine if someone is mentally competent,” he says. “These issues are not limited exclusively to people who do estate planning or elder law, because people get old and people get sick.” Warning Issued About New Social Security ScamIan Smith January 13, 2020 Current Events Comments (26)
The Social Security Inspector General (IG) recently sounded the alarm about a new scam in which thieves are emailing fake documents purporting to come from the Social Security Administration in an effort to get the victims to comply with their demands. The Social Security Administration Office of the Inspector General (OIG) has received reports of victims who received emails with attached letters and reports that appeared to be from Social Security or Social Security OIG. The letters may use official letterhead and government “jargon” to convince victims they are legitimate, however, they may also contain misspellings and grammar mistakes which can be a tip off that they are fake. The IG says that this is the latest variation on what is a widespread and long-running scam involving Social Security. Scammers make phone calls that are either live calls or robocalls in which the caller claims to be a federal employee who says there is identity theft or another problem with one’s Social Security number, account, or benefits. The fake calls may threaten arrest or other legal action, or may offer to increase benefits, protect assets, or resolve identity theft. They often demand payment via retail gift card, cash, wire transfer, internet currency such as Bitcoin, or pre-paid debit card. Tips for Staying Vigilant to ScamsThe Social Security Administration is reminding everyone that the agency will never do any of the following:
You should never pay a government fee or fine using retail gift cards, cash, internet currency, wire transfers, or pre-paid debit cards. Scammers ask for payment this way because it is very difficult to trace and recover. What Should You Do?If you receive a call or email that you believe to be suspicious that claims to be about a problem with your Social Security number or account, hang up or do not respond. You should also report Social Security scams using SSA’s dedicated online form. Additional information about how to stay protected from scams and the latest warnings from SSA about recent scams is available at https://oig.ssa.gov/scam. Deceased Public Safety Officer’s Failure to Name Surviving Fiancée as Beneficiary of Life Insurance Policy Led to Denial of Death Benefits Claim
San Diego County Sheriff's Deputy Kenneth Collier died while on patrol. Collier was survived by his fiancée, Karen Li. Although Collier had told Li and their friends, including through video footage, that he had made arrangements for Li to be "taken care of," the beneficiary designation form for Collier's life insurance designated his mother, who predeceased Collier, as primary beneficiary and his ex-girlfriend as contingent beneficiary. The ex-girlfriend and Li ultimately arrived at a settlement, which the insurance company honored. Thereafter, Li applied for death benefits under 34 U.S.C. §10281(a) (The Public Safety Officers' Benefits Act, PSOB), which directs the Bureau of Justice Assistance (BJA) to pay a death benefit to an appropriate claimant when an officer is killed in the line of duty. The BJA denied the claim on the grounds that Li had failed to show she was a designated beneficiary of a "legal and valid" life insurance policy; a required element to support a PSOB benefits claim. Li appealed, arguing that the BJA did not properly consider the totality of the circumstances, including the video footage, Collier's statements, and the prior settlement. The Court of Appeals for the Federal Circuit affirmed the denial of benefits. The court held, in part, that Congress intended a decedent's most recent life insurance policy to be determinative of the proper beneficiary for PSOB benefits. Because section 10281(a)(4)(B) and California state insurance law requires strict compliance, the court said Li's totality-of-the-circumstances test lacked merit, and the BJA's findings were not arbitrary, capricious, or unsupported by the evidence. Does anyone know if this is legal in Virginia?
StarTribune MORE FROM THE HOMEPAGE prevArizona, California cases push US tally of new virus to 5 Souhan: Reassembled Twins cast could be the best, despite shaky pitching Some Minnesota liquor stores are beating Total Wine at its own game They shared an abuser – now, two high-profile Twin Cities women are speaking out What is Real ID? Who in Minnesota needs it and by when? AP source: Ex-NBA star Kobe Bryant dies in helicopter crash U mines China connection but worries about future Trump lawyers argue Democrats just want to overturn election City, county officials are choosing to opt out of Minn. presidential primary Who can topple Trump? Dems' electability fight rages in Iowa Minnesota parents fight schools to allow children access to CBD Arizona, California cases push US tally of new virus to 5 Souhan: Reassembled Twins cast could be the best, despite shaky pitching Some Minnesota liquor stores are beating Total Wine at its own game They shared an abuser – now, two high-profile Twin Cities women are speaking out What is Real ID? Who in Minnesota needs it and by when? AP source: Ex-NBA star Kobe Bryant dies in helicopter crash U mines China connection but worries about future Trump lawyers argue Democrats just want to overturn election City, county officials are choosing to opt out of Minn. presidential primary Who can topple Trump? Dems' electability fight rages in Iowa next OCAL 567022772 Minnesota law gives green light to safety surveillance cameras in senior homesCameras have become an important tool for families who suspect abuse in senior care facilities. By Chris Serres Star Tribune JANUARY 16, 2020 — 5:06AM DAVID JOLES - STAR TRIBUNE FILEIn 2017, Lisa Papp-Richards installed a camera to monitor the care of her mother, Mary Ann Richards, 77, at a nursing home in Bemidji, taking advantage of a new law that permits electronic monitoring devices in senior facilities. TEXT SIZE 11 MORE At 2 a.m. on a November morning, Shirley Breitman began to scream for help from the bed of her assisted-living facility in St. Louis Park. Her pained cries were streamed live to the smartphones of Breitman’s two adult children — Richard in Minneapolis and Laurie in Los Angeles — through an internet-connected camera placed in her bedroom. Within minutes, Richard was on the phone with the facility’s nursing staff, asking them to check on their 98-year-old mother, who has advanced dementia and was experiencing an adverse reaction to new medication. “Once you install one of these cameras, you can’t imagine living without it,” said Breitman, an attorney. “It gives you peace of mind knowing that another set of eyes is on our mother.” In recent years, a raft of new video surveillance technology has made it possible for families to monitor the daily movements and care of their aging relatives with remarkable clarity and precision. Yet Minnesota law has long been silent on whether people actually had the right to install such equipment in residents’ rooms at care facilities, an omission that sowed confusion and conflicts between families and senior homes. Now, after years of legal wrangling, state law is finally clear: Minnesotans have the right to use electronic monitoring devices in most senior care facilities, provided they notify the facility and obtain consent from residents being monitored. Effective this month, nursing homes and assisted-living facilities across the state are required to inform residents of their right to use the cameras. The small, internet-enabled cameras can bring peace of mind to families who suspect abuse of a loved one, or who simply want to keep better tabs on their care. The remote monitoring systems, which can be purchased online for less than $200, have become increasingly sophisticated. People can now receive automatic alerts to their smartphones when someone enters a loved one’s room, or when there is unusual activity or sound. More information If you have questions on the new electronic monitoring law, contact these agencies: Office of Ombudsman for Long-Term Care: 651-431-2555 The Minnesota Department of Health, regulation division: 651-201-4101 Breitman said the streaming videos are so vivid that, on a recent morning, he could see the type of food aides left for his mother as well as the quality of the bandages on her injured wrist. “It’s stunningly good,” Breitman said as he watched the video feed. But not all seniors want to live under round-the-clock surveillance. Last year, elder care advocates, industry representatives and state health officials struggled to work out a compromise between invasion of privacy and fears of resident abuse. The result is a complicated set of new reporting requirements and some confusion over how the new law will be implemented. Some advocates worry that the bevy of new rules will discourage the very surveillance it was designed to protect and that some people may be subject to retaliation for using the devices. Modeled after legislation in Illinois, Minnesota’s law requires that families obtain the resident’s consent to the use of a camera and notify the facility of their plans. If a resident occupies a shared room, the roommate must also provide consent. In cases where senior residents are too frail or cognitively impaired to give consent, relatives must fill out a 9-page form with a written statement from a medical professional. The prior notification requirements also have advocates worried about possible retaliation. In the past, families who suspected abuse or neglect of a loved one could put hidden cameras in their loved one’s room without ever telling facility staff. In many cases, families would take this step as a last resort, when attempts to work out problems with facility staff had failed, advocates noted. Now, however, residents or family members who install a surveillance camera without first notifying the facility and completing the required consent forms are violating state law. The new law does allow for an exception: If a resident or family member fears retaliation, they can install the device for two weeks without notifying the facility, provided they submit a special form to the Office of the Ombudsman of Long-Term Care. Jean Peters, president of Elder Voice Family Advocates, a nonprofit that advocates for safe and quality care in long-term care facilities, said the new law and its bevy of new rules are “unnecessarily punitive” and leave families vulnerable to retaliation. “All people want to do is monitor the care of their loved ones, to make sure they are getting what they are paying for,” Peters said. “These reporting requirements will have a chilling effect on families.” Sean Burke, public policy director at the Minnesota Elder Justice Center, which helped craft the regulations, acknowledged that some families may find the new paperwork overly burdensome. But, he said, the state had to respect the privacy rights of seniors, including those who may be incapable of understanding that they are being filmed. “With this new technology, it’s literally like ‘The Truman Show,’ ” Burke said. “You are putting [your loved one’s] entire life on film, potentially, including their most intimate cares. That is an awesome power.” Staff tampered with camera Allegations of abuse in senior homes are notoriously hard to prove, and hidden cameras are one of the few ways that families can corroborate claims by elderly relatives. Increasingly, the footage is also being used by law enforcement officials and state health regulators, in some cases to bring criminal charges. Across Minnesota, many seniors and their relatives are learning about the technology for the first time. Care Providers of Minnesota, a long-term care industry trade group, is urging its member facilities to include information about the new law in admissions packets for new residents. “Eventually, everyone should be educated,” said Patti Cullen, president and chief executive of Care Providers. Lisa Papp-Richards is among the first to take advantage of the new law. Three years ago, she tried to install a camera in the Bemidji nursing home where her 77-year-old mother lived after she noticed a sudden decline in her health without any clear explanation. Soon, however, facility staff began tampering with the camera — even placing a towel over it — and eventually seized the camera without her consent. The family filed a police report alleging theft. Last week, emboldened by the new law, Papp-Richards reinstalled the camera in the same place, high atop a wooden cabinet, with a clear view of her mother’s room. Already, she is checking the video stream on her smartphone four to five times a day, and she’s noticed an improvement in her mother’s mental well-being. Her mother, she said, has become “more relaxed” knowing that her daughter is keeping a closer watch on her care. On the video feed, Papp-Richards could see staff joking and interacting well with her mother, which helped assuage worries that her mother was being left alone. “At my mother’s age, things can change in an instant, so it’s vitally important to be able to react immediately,” Papp-Richards said. “The cameras are a reassuring, last line of defense.” Chris Serres covers social services for the Star Tribune. chris.serres@startribune.com 612-673-4308 chrisserres StarTribune MORE FROM THE HOMEPAGE prevArizona, California cases push US tally of new virus to 5 Souhan: Reassembled Twins cast could be the best, despite shaky pitching Some Minnesota liquor stores are beating Total Wine at its own game They shared an abuser – now, two high-profile Twin Cities women are speaking out What is Real ID? Who in Minnesota needs it and by when? AP source: Ex-NBA star Kobe Bryant dies in helicopter crash U mines China connection but worries about future Trump lawyers argue Democrats just want to overturn election City, county officials are choosing to opt out of Minn. presidential primary Who can topple Trump? Dems' electability fight rages in Iowa Minnesota parents fight schools to allow children access to CBD Arizona, California cases push US tally of new virus to 5 Souhan: Reassembled Twins cast could be the best, despite shaky pitching Some Minnesota liquor stores are beating Total Wine at its own game They shared an abuser – now, two high-profile Twin Cities women are speaking out What is Real ID? Who in Minnesota needs it and by when? AP source: Ex-NBA star Kobe Bryant dies in helicopter crash U mines China connection but worries about future Trump lawyers argue Democrats just want to overturn election City, county officials are choosing to opt out of Minn. presidential primary Who can topple Trump? Dems' electability fight rages in Iowa next LOCAL 567022772Minnesota law gives green light to safety surveillance cameras in senior homesCameras have become an important tool for families who suspect abuse in senior care facilities. By Chris Serres Star Tribune JANUARY 16, 2020 — 5:06AM DAVID JOLES - STAR TRIBUNE FILEIn 2017, Lisa Papp-Richards installed a camera to monitor the care of her mother, Mary Ann Richards, 77, at a nursing home in Bemidji, taking advantage of a new law that permits electronic monitoring devices in senior facilities. TEXT SIZE 11 MORE At 2 a.m. on a November morning, Shirley Breitman began to scream for help from the bed of her assisted-living facility in St. Louis Park. Her pained cries were streamed live to the smartphones of Breitman’s two adult children — Richard in Minneapolis and Laurie in Los Angeles — through an internet-connected camera placed in her bedroom. Within minutes, Richard was on the phone with the facility’s nursing staff, asking them to check on their 98-year-old mother, who has advanced dementia and was experiencing an adverse reaction to new medication. “Once you install one of these cameras, you can’t imagine living without it,” said Breitman, an attorney. “It gives you peace of mind knowing that another set of eyes is on our mother.” In recent years, a raft of new video surveillance technology has made it possible for families to monitor the daily movements and care of their aging relatives with remarkable clarity and precision. Yet Minnesota law has long been silent on whether people actually had the right to install such equipment in residents’ rooms at care facilities, an omission that sowed confusion and conflicts between families and senior homes. Now, after years of legal wrangling, state law is finally clear: Minnesotans have the right to use electronic monitoring devices in most senior care facilities, provided they notify the facility and obtain consent from residents being monitored. Effective this month, nursing homes and assisted-living facilities across the state are required to inform residents of their right to use the cameras. The small, internet-enabled cameras can bring peace of mind to families who suspect abuse of a loved one, or who simply want to keep better tabs on their care. The remote monitoring systems, which can be purchased online for less than $200, have become increasingly sophisticated. People can now receive automatic alerts to their smartphones when someone enters a loved one’s room, or when there is unusual activity or sound. More information If you have questions on the new electronic monitoring law, contact these agencies: Office of Ombudsman for Long-Term Care: 651-431-2555 The Minnesota Department of Health, regulation division: 651-201-4101 Breitman said the streaming videos are so vivid that, on a recent morning, he could see the type of food aides left for his mother as well as the quality of the bandages on her injured wrist. “It’s stunningly good,” Breitman said as he watched the video feed. But not all seniors want to live under round-the-clock surveillance. Last year, elder care advocates, industry representatives and state health officials struggled to work out a compromise between invasion of privacy and fears of resident abuse. The result is a complicated set of new reporting requirements and some confusion over how the new law will be implemented. Some advocates worry that the bevy of new rules will discourage the very surveillance it was designed to protect and that some people may be subject to retaliation for using the devices. Modeled after legislation in Illinois, Minnesota’s law requires that families obtain the resident’s consent to the use of a camera and notify the facility of their plans. If a resident occupies a shared room, the roommate must also provide consent. In cases where senior residents are too frail or cognitively impaired to give consent, relatives must fill out a 9-page form with a written statement from a medical professional. The prior notification requirements also have advocates worried about possible retaliation. In the past, families who suspected abuse or neglect of a loved one could put hidden cameras in their loved one’s room without ever telling facility staff. In many cases, families would take this step as a last resort, when attempts to work out problems with facility staff had failed, advocates noted. Now, however, residents or family members who install a surveillance camera without first notifying the facility and completing the required consent forms are violating state law. The new law does allow for an exception: If a resident or family member fears retaliation, they can install the device for two weeks without notifying the facility, provided they submit a special form to the Office of the Ombudsman of Long-Term Care. Jean Peters, president of Elder Voice Family Advocates, a nonprofit that advocates for safe and quality care in long-term care facilities, said the new law and its bevy of new rules are “unnecessarily punitive” and leave families vulnerable to retaliation. “All people want to do is monitor the care of their loved ones, to make sure they are getting what they are paying for,” Peters said. “These reporting requirements will have a chilling effect on families.” Sean Burke, public policy director at the Minnesota Elder Justice Center, which helped craft the regulations, acknowledged that some families may find the new paperwork overly burdensome. But, he said, the state had to respect the privacy rights of seniors, including those who may be incapable of understanding that they are being filmed. “With this new technology, it’s literally like ‘The Truman Show,’ ” Burke said. “You are putting [your loved one’s] entire life on film, potentially, including their most intimate cares. That is an awesome power.” Staff tampered with camera Allegations of abuse in senior homes are notoriously hard to prove, and hidden cameras are one of the few ways that families can corroborate claims by elderly relatives. Increasingly, the footage is also being used by law enforcement officials and state health regulators, in some cases to bring criminal charges. Across Minnesota, many seniors and their relatives are learning about the technology for the first time. Care Providers of Minnesota, a long-term care industry trade group, is urging its member facilities to include information about the new law in admissions packets for new residents. “Eventually, everyone should be educated,” said Patti Cullen, president and chief executive of Care Providers. Lisa Papp-Richards is among the first to take advantage of the new law. Three years ago, she tried to install a camera in the Bemidji nursing home where her 77-year-old mother lived after she noticed a sudden decline in her health without any clear explanation. Soon, however, facility staff began tampering with the camera — even placing a towel over it — and eventually seized the camera without her consent. The family filed a police report alleging theft. Last week, emboldened by the new law, Papp-Richards reinstalled the camera in the same place, high atop a wooden cabinet, with a clear view of her mother’s room. Already, she is checking the video stream on her smartphone four to five times a day, and she’s noticed an improvement in her mother’s mental well-being. Her mother, she said, has become “more relaxed” knowing that her daughter is keeping a closer watch on her care. On the video feed, Papp-Richards could see staff joking and interacting well with her mother, which helped assuage worries that her mother was being left alone. “At my mother’s age, things can change in an instant, so it’s vitally important to be able to react immediately,” Papp-Richards said. “The cameras are a reassuring, last line of defense.” Chris Serres covers social services for the Star Tribune. chris.serres@startribune.com 612-673-4308 chrisserres You can sign a document that says: if I get dementia, I want you to let me starve to death. But most states wont let a document like this stand and let you die of starvation. Read more:
Diagnosed With Dementia, She Documented Her Wishes. They Said No.By JoNel Aleccia Photos by Heidi de Marco JANUARY 21, 2020 Susan Saran was diagnosed with frontotemporal dementia, a progressive, fatal brain disease. After suffering two brain hemorrhages, Saran signed an advance directive for dementia, a controversial new document that instructs caregivers to withhold hand-feeding and fluids at the end of life. She wears a chain bearing instructions that she not be resuscitated.(HEIDI DE MARCO/KHN) ITHACA, N.Y. — When she worked on the trading floor of the Chicago Board Options Exchange, long before cellphone calculators, Susan Saran could perform complex math problems in her head. Years later, as one of its top regulators, she was in charge of investigating insider trading deals. This story also ran on The Washington Post. This story can be republished for free (details). Today, she struggles to remember multiplication tables. Seven years ago, at age 57, Saran was diagnosed with frontotemporal dementia, a progressive, fatal brain disease. She had started forgetting things, losing focus at the job she’d held for three decades. Then tests revealed the grim diagnosis. “It was absolutely devastating,” said Saran, 64. “It changed everything. My job ended. I was put out on disability. I was told to establish myself in a community before I was unable to care for myself.” So Saran uprooted herself. She sold her home in 2015 and found what looked like an ideal place: Kendal at Ithaca, a bucolic retirement community in rural New York whose website promised “comprehensive health care for life.” And now, she’s fighting with that community over her right to determine how she’ll die ― even though she has made her wishes known in writing. Such a fight could ensnare millions of Americans with dementia in coming years. In 2018, after two brain hemorrhages, Saran conferred with a lawyer and signed an advance directive for dementia, a controversial new document created by the group End of Life Choices New York that instructs caregivers to withhold hand-feeding and fluids at the end of life to avoid the worst ravages of the disease. “It’s not something that I am willing to endure,” she said. “I don’t want my life prolonged beyond the point where I’m participating in life.” But when Saran submitted the document to Kendal at Ithaca, the New York continuing care retirement community where she has spent more than $500,000 to secure her future, officials there said they could not honor her wishes. In a letter, lawyers told Saran that the center is required by state and federal law to offer regular daily meals, with feeding assistance if necessary. There’s no provision, the letter said, for “decisions to refuse food and water.” Saran lives in a small cottage at Kendal at Ithaca, a continuing care retirement community with 236 independent units and an 84-bed health center in Ithaca, N.Y.(HEIDI DE MARCO/KHN) Saran has spent more than $500,000 to secure her future there, but facility officials said they could not honor her wishes not to be spoon-fed as her dementia advances and she becomes unable to feed herself. (HEIDI DE MARCO/KHN) It’s a cruel quandary for Saran and other Americans who have turned to a crop of dementia directives created in recent years. Even when people document their choices ― while they still have the ability to do so ― there’s no guarantee those instructions will be honored, said Dr. Stanley Terman, a California psychiatrist who advises patients on end-of-life decisions. “It is, in my opinion, a false sense of security,” Terman said. That may be especially true for the 2.2 million people who live in long-term care settings in the United States. People with dementia are most likely to die in nursing facilities, according to new research from Duke University and the Veterans Affairs Boston Healthcare System. “If you’ve got the resources, where you’ve got family and paid caregivers at home, you’re all set,” said Dr. Karl Steinberg, a California geriatrician and hospice physician who has written extensively about dementia directives. If you’re living in a facility, he added, “it’s not going to happen.” One key question is whether patients with dementia ― or those who fear the disease ― can say in advance that they want oral food and fluids stopped at a certain point, a move that would hasten death through dehydration. It’s a controversial form of what’s known as VSED ― voluntarily stopping eating and drinking ― a practice among some terminally ill patients who want to end their lives. In those cases, people who still have mental capacity can refuse food and water, resulting in death within about two weeks. Many states prohibit the withdrawal of assisted feeding, calling it basic “comfort care” that must be offered. Only one state, Nevada, explicitly recognizes an advance directive that calls for stopping eating and drinking. And that’s via a little-known law that took effect in October. Critics of such documents, however, say they could lead to forced starvation of incapacitated people. The directives may be biased, reflecting a society prejudiced against age, disability and cognitive change, said Dr. James Wright, medical director of three long-term care facilities in Richmond, Va. He’s the lead author of a recent white paper advising facilities not to honor dementia directives. Based on his years of clinical experience, Wright said many people with dementia become content with their situation, even when they never thought they would be. “To enforce an advance directive on someone who may have had a complete turnaround on what they think of a life worth living is unethical and immoral,” Wright said. The dementia directives published in the past few years are aimed at filling what experts say has been a major gap in advance-care planning: the gradual loss of capacity to make decisions about one’s care. One version, published in 2018 by Dr. Barak Gaster, a professor of medicine at the University of Washington, has been downloaded 130,000 times after it was mentioned in a New York Times story and continues to be retrieved about 500 times per week. “This is an issue that people have really thought a lot about,” Gaster said. “They worry about it a lot. They’re so eager and excited to have a structured opportunity to make their wishes known.” Traditional advance directives focus on rare conditions, such as a persistent vegetative state or permanent coma, Gaster said. “And yet the No. 1 reason a person would lose ability is dementia,” he added. In addition to Gaster’s document, directives drafted in New York and Washington state have drawn hundreds of users. The aid-in-dying advocacy group Compassion & Choices released a dementia directive this month. As the U.S. population ages, more people ― and their families ― are grappling with dementia. By 2050, nearly 14 million Americans aged 65 and older may be diagnosed with Alzheimer’s disease. “We are right now experiencing the very first upswing of the giant wave of dementia that’s heading our way,” Gaster said. Saran, a longtime Buddhist, often drives to a nearby monastery to practice her faith.(HEIDI DE MARCO/KHN) Saran is on the crest of that wave. Divorced, with no close family, she turned to Kendal ― with its 236 independent units and 84-bed health center ― as her final home. During her four years there, she has noticed some decline in her mental clarity. “Even some of the simplest mathematical problems, like even seven times seven, I can’t think of it now,” Saran said. Still, she is able to manage her affairs. She cooks her own food and cares for her three cats ― Squeaky, Sweetie and Pirate, a one-eyed tabby. A longtime Buddhist, she often drives to a nearby monastery to practice her faith. In late summer, Saran invited visitors to her small cottage at Kendal, where tapestries hang on the walls and bookshelves are filled with tomes on religion, death and dying. Frontotemporal dementia affects about 60,000 people in the U.S., and patients often die within seven to 13 years, but Saran’s disease appears to be progressing more slowly than expected. “I think I have great capacity,” said Saran, who wears her silver hair long and favors jeans, linen shirts and turquoise jewelry. She chain-smokes, lighting up the Seneca cigarettes she buys for $3 a pack from a nearby Indian reservation. She thought about quitting but decided it wasn’t worth the effort and continues to indulge her habit. “If you had my diagnosis, wouldn’t you?” she said. When Saran was hospitalized after her strokes, she suddenly understood what losing her abilities might mean. “I realized, oh, my God, I might get stuck in a situation where I can’t take any independent action,” she recalled. “I better make sure I have all my paperwork in order.” She was stunned to learn it might not matter, even after her local lawyer, Chuck Guttman, drafted health care proxy documents and a power of attorney. “I thought this was it,” she said. “I thought I’d move here and everything was taken care of, everything was settled. And now it’s not.” Saran asked her lawyer, Chuck Guttman, to draft health care proxy and power of attorney documents as part of her advance directive to ensure that her final wishes are carried out. The new crop of dementia directives was inspired, in part, by high-profile cases of dementia patients spoon-fed against their apparent wishes.(HEIDI DE MARCO/KHN) Laurie Mante, Kendal’s executive director, declined to comment on Saran’s situation, even when Saran authorized her to do so. “We recognize the great complexity in balancing our residents’ wishes with what is required of us,” Mante wrote in an email. “We have a dedicated team who works to balance those interests, and, when appropriate, work with our residents and their families to seek alternative paths.” Saran said no one from Kendal has reached out to discuss an “alternative path.” Not all dementia directives include instructions about assisted feeding. Gaster said he and his colleagues had “heated conversations” before deciding to leave that issue off their popular document. Instead, he said, his option helps more people by addressing general goals of care for each stage of the disease. The most important thing, he said, is for people to consider their choices and share their desires with their loved ones. The debate, Gaster said, boils down to whether assisted feeding is “basic support” or “a medical intervention that can be declined in advance.” “There’s still a very wide perspective of viewpoints on that,” he said. Backed by statute and practice, facilities say they are bound to offer food to all residents willing to eat, and to assist with hand-feeding and fluids if a person needs help. The controversy centers on the definition of those terms. Wright says late-stage dementia patients who show any interest in food ― a flick of the eyes, grunting or gestures, opening the mouth ― should be fed until they refuse it. Steinberg and others contend the default should be “don’t feed unless they ask for it.” It’s always going to be “somewhat of a guess,” Wright acknowledged, about whether hand-feeding someone is help ― or force. “I’ve not seen any guidelines that can faithfully give good, unbiased guidance,” he said. “I feel that I personally can determine when food means something to my patients and when it doesn’t.” The new crop of dementia directives was inspired, in part, by high-profile cases of dementia patients who were spoon-fed against their apparent wishes. In Oregon and British Columbia, courts ruled that food and water were basic care that could not be withdrawn. But so far, there’s been no court case that says a clear advance directive for VSED “may or must be honored,” said Thaddeus Mason Pope, a professor at the Mitchell Hamline School of Law who studies end-of-life decisions. Pope said he has heard of many people who move out ― or their families move them out ― of long-term care facilities to avoid assisted feeding in the last stages of dementia. Saran has considered that, too. “I should probably just leave,” she said, although that would mean losing the nonrefundable investment she’s already made. “I think about that every day.” But then what? Hospice might be a solution, but only if there’s room when she needs it, she said. Saran said her situation should be viewed as a cautionary tale. She wishes she’d asked more questions, insisted on answers about exactly how she would die once her dementia progressed. “I didn’t realize I was signing away my right to self-determination,” she said. “I am appalled that my future demented self takes precedence over my competent current self.” JoNel Aleccia: jaleccia@kff.org, @JoNel_Aleccia Heidi de Marco: heidid@kff.org, @Heidi_deMarco Eight Crazy Nights’ Of Estate Planning Topics To Discuss With Your Family And FriendsIn many ways, the holiday season is the perfect time to think about estate and personal planning.By Cori A. Robinson
Dec 24, 2019 at 2:45 PM(Image via Shutterstock) Comedian Adam Sandler’s “The Chanukah Song” has become a holiday classic for all regardless of whether or they celebrate the Festival of Lights. A familiar refrain (in all four editions of the song) is the affirmation that “instead of one day of presents” the children who celebrate Chanukah “have eight crazy nights!” (also the name of a Sandler holiday movie). Surely, part of the crazy that Sandler references is the interaction with family, the giving and receiving of gifts, and, in addition, personal reflections on our own lives. In many ways, the holiday season is the perfect time to think about one’s own estate and personal planning, especially as it coincides with the entry of 2020. And so, my gift to you are eight estate and personal planning topics for you to think about and discuss with your family and friends, one for each night of Chanukah, crazy or not.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com. Great. Read the below link if you have a trust!
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AuthorJeff Sodoma, MPA, Esq. is a lawyer based in Virginia Beach, Virginia Blog!Hello, there! Welcome to my blog. I will use this blog as a platform for my writing. I will write about topics in the legal world, certainly, as well as everything else under the sun, because I have many interests (and viewpoints). All views expressed in this blog, unless otherwise noted, are mine alone. One of my interests is music--my wife believes that I should go on "Beat Shazam" because I know so many songs--and I will be, from time to time, analyzing song lyrics and how they relate to the legal world.
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