Elder-Law-Advocate

Article Archive

Elder Law Newsletter      June 22, 2011
 
What Happened to Mickey Rooney?
  
Remember Mickey Rooney?  Most can.  He’s an American film icon (National Velvet, numerous “voice-over” movies and, more recently, Night at the Museum).
 
To the dismay of many Americans, Rooney testified before the Senate Committe on Aging on the subject of elder abuse (March 2, 2011) about the psychological, emotional and financial exploitation that he suffered at the hands of one of his relatives.  Although he refused to disclose the name of the family member, it’s known that he also filed a petition to obtain a temporary restraining order against one of his stepsons.   To read some of Rooney’s testimony, click here.
 
Following the hearing, legislation was introduced to create an Office of Elder Justice within the Department of Justice.  The proposed legislation is intended to help coordinate law enforcement response to elder abuse.
 
I hope this means something that would be immediately constructive if, and when, enacted – rather than simply adding more layers of bureaucracy without accomplishing anything concrete.
 
What happened to Mickey Rooney?  Unfortunately, he involuntarily became a victim of elder financial and psychological abuse.  But he also had the strength and conviction to stand up and speak out on behalf of the disadvantaged class of adults that don’t have the notoriety and fame that Rooney has.  Thanks, Mickey!
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Elder Law Newsletter  May 4, 2011
 
Financial Power of Attorney – Immediate or “Springing Power”?
 
I’ve written on this topic before, but I still receive questions about whether an “immediate” financial power of attorney is recommended vs. a “springing power”.
 
Generally speaking, you should advise your clients against the granting of an immediate power of attorney.
 
The difference is simple:  An immediate power grants your agent just that – the authority to immediately access your financial accounts and to do whatever you could do with your finances and property.
 
A “springing power” does not grant your agent any financial authority until, and unless, you become incapacitated and are no longer able to make sound financial decisions.  The determination of “incapacity” generally requires that two qualified medical doctors sign a declaration, under penalty of perjury, that you suffer from some mental deficit that prevents you from making sound financial decisions. 
 
Once these two declarations are obtained, your agent can then take them (along with the power of attorney) to any of your financial institutions and, with full legal authority, transact business for you.
 
If your client is mentally capable of making sound financial decisions, then there is no reason to allow someone else the authority to do so.  There may be some exceptions to this; for example, a client may be going on an out of country vacation and needs to conclude a real estate sale that is time sensitive.  Under this scenario, it may make sense to execute a limited – special power of attorney that grants the agent the immediate authority to sign all necessary real estate documents to conclude the sale.  However, this special power of attorney would be drafted very narrowly in scope, to include only the specific authority needed to close the sale.
 
Financial powers of attorney are an important estate planning document that every adult should have.  However, a red-flag warning should arise if you learn that one of your elderly client’s children insists that their parent sign a power of attorney that grants that child/agent an immediate power to transact financial business.  Placed into the wrong hands, a financial power of attorney can become a license to steal.
 
Unless some extenuating circumstances warrant the granting of an immediate authority,  the safe approach is to grant only a “springing power” to an agent.
 
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Elder Law Newsletter      April 27, 2011
Help from In-Home Supportive Services
 
In-Home Supportive Services (IHSS) can be of great assistance in helping elders to remain at home rather than being moved to a dependent facility (perhaps even a skilled nursing facility).
Please remember to consider IHSS services when evaluating your client’s needs.
This program is run by the Riverside County Department of Public Social Services and can offer numerous forms of assistance to avoid institutionalization.  Removing an elder from their home should, of course, be a decision of last resort.  Sometimes, the needs of an at risk elder can be met with minimal assistance.
An Adult Protective Services worker may discover that a client’s refrigerator is empty and the elder is obviously unable to grocery shop and/or prepare meals.  Is the reason for this self-neglect because s/he is mentally incapable of arranging for this necessity, or is it because the elder’s pride, dignity or embarassment preventing him from seeking help?  If the answer is the latter, then IHSS services may be an easy remedy to provide for this need, stop the self-neglect, and allow the elder to remain comfortably in their own home.
Services can include:
Food Shopping
Meal Preparation
After Meal Clean-Up
Domestic Services (light house-cleaning)
Assistance With Medications
IHSS can also coordinate with other agencies to provide even more assistance.  Law Enforcement, Public Guardian, Mental Health, Office on Aging and volunteer and community based organizations can offer a myriad of additional services to allow the elderly to remain at home and preserve their dignity and happiness.
Please remember to consider IHSS when evaluating a client’s needs.  Combined with other services offered throughout Riverside County, there may be plenty of solutions available to avoid institutionalization and allow an elder to continue to enjoy life with the least restrictions possible.
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 Elder Law Newsletter  April 13, 2011
Riverside County Seeks $400K Grant to Combat Elder Abuse
I read an article recently and was pleasantly surprised to find that Riverside County is seeking a $400K grant to combat elder physical and financial abuse.  If the federal justice department grant is approved, then the money would be utilized over a 36 month period to train prosecutors, victims’ advocates, social workers and police investigators.
 
Hopefully, this training will help to prosecute more perpetrators who prey on elderly victims.  Several comments were posted at the end of the article, and they all have a common theme:  Isolation of the victim and a lack of concern to thoroughly investigate.  
 
The requested grant will hopefully be approved and the Riverside County DA’s office can expand its training to other agencies to help identify many other abuse cases that would otherwise be ignored as “nothing out of the ordinary”.   
 
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Elder Law Newsletter  January 31, 2011
Office on Aging provides a myriad of services.
 
 The Riverside County Office on Aging (OoA) offers a wide range of services and programs for seniors, the elderly and the disabled.
Every county in California has a similar agency (the California Department of Aging contracts with and provides leadership and direction to Area Agencies on Aging).
It’s really pretty amazing – the number of different services and programs that are offered.
I encourage you to visit their website and see whether any of these programs could benefit one of your clients.
The following is just a partial list of the programs and services offered by the Riverside County OoA:
Adult Day Care.   Non-medical services are provided to those at risk for institutionalization, and may include meals, social and recreational activities, rehabilitation and medication assistance.
Care Coordination.   I have a personal ‘mantra’ … “A nursing home placement and/or a conservatorship should always be a last resort”.  Under the right circumstances, OoA’s care coordination services might provide the tools to prevent an elder from prematurely having to enter a nursing home.  OoA can conduct a comprehensive in-home evaluation to identify the elder’s specific needs and then assist by locating additional community resources that may meet enough of the required needs that a nursing home placement can be avoided.
Under “care coordination”, are a host of other services including:

Multiple Senior Services Program (MSSP).  Offers assistance to frail Medi-Cal eligible seniors.

Linkages Program.  As I understand this, the purpose is to identify an elder’s needs (or dependent adult between 18-64) and then “link” those needs to every service program that can assist to allow an elder to remain at home for as long as possible.  What a fantastic concept.

In re-reviewing OoA’s website and its programs and services, I’m a little shocked to discover how little I’ve utilized them to provide assistance to my clients.  I’m usually consumed with the courts and legal issues.  But I remember one case, in particular, where I truly believed my client had the mental and physical capacity to remain at home and avoid a nursing home placement, and was able to avoid that through OoA’s assistance in conducting a thorough in-home assessment of my client’s needs.

My client’s son was basically evil, and had set up an irrevocable trust that allowed him to take title of his mother’s home if she could no longer reside there.  Hence, he was hell-bent to get her removed and placed into a nursing home.

OoA’s help was a determining factor in preventing this.  Again, thanks!

I would think that most of us have a client, friend or loved one, who could benefit from OoA’s services.
Here’s one more click  to their website.
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Elder Law Newsletter January 18, 2011
Reimbursement to Crime Victims
 
  Sometimes, when I get a call from a distraught elder or family member (about a financial rip-off), it’s just too late.  The money or property is gone.  It’s all been spent or transferred away.  There’s no question that financial abuse occurred and could be proven in a civil court, but there’s nothing left to recover.
     The bottom line would be that after hundreds of hours of legal work and thousands of dollars in costs, the elderly victim would have a paper judgment – an IOU that’s uncollectible.
     Fortunately, assistance for reimbursement to crime victims is available through the Riverside County District Attorney’s Office.
     The claims verification unit provides a team of professionals to assist crime victims in processing their California Victim Compensation Program (CalVCP) applications.   When there is no other source of reimbursement, the CalVCP may offer payment for a variety of needs.
     This doesn’t involve payment (or reimbursement) of lost money or property.  Instead, it’s an opportunity to help the victim get back on track and re-establish their life.
     Depending on the severity of the criminal damage done and the financial condition of the victim, payment for the following types of expenses may be requested:
  • Medical treatment
  • Dental treatment
  • Mental health services
  • Funeral & burial services
  • Home security
  • Residential crime scene clean-up
  • Emergency relocation
  • Wage loss
  • Dependent support loss
  • Job retraining
  • Home or vehicle modifications
  • Moving expenses (including deposits and first and last months’ rent)
  • Temporary lodging
     Again, the CalVCP is not capable of returning stolen money or property to elderly victims.  That is accomplished through civil or criminal prosecution, or both.  The Elder Abuse & Dependent Adult Civil Protection Act, and  Penal Code §368, provide civil and criminal remedies to recover all damages, including pain and suffering (civil) and restitution (criminal).
     Quick action must be taken immediately upon suspected financial abuse – before the defendant is able to abscond with all of the elder’s life savings.  Obviously, this doesn’t always happen in our “perfect world”.
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Elder Law Newsletter  January 10, 2011
 
Undue Influence – What to Look For
Surprisingly, “undue influence” has no legal definition in the California Probate Code, although there are definite signs that one can look to – in accessing whether an elder is being unduly influenced.
By recognizing the signs – and taking action – you have the unique ability to correct an injustice and greatly improve the quality of an elder’s life.
A definition of undue influence does exist in §1575 of the Civil Code, and reads:
“Undue influence consists:
1.  In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;
2.  In taking an unfair advantage of another’s weakness of mind; or
3.  In taking a grossly oppressive and unfair advantage of another’s necessities or distress.”
In 2009, the San Francisco County Superior Court studied the phenomenon of undue influence – because of the lack of any definition in the Probate Code. This study included a review of California state law related to undue influence, a review of all 50 states’ probate codes to see which, if any, contained definitions of undue influence, a review of social services and psychological literature on the subject, and focus groups from APS social workers, Public Guardian, and private attorneys.
In a nutshell, the report found that undue influence almost always had certain identifiable characteristics:
1.  Mental incapacity resulting from dementia, medications, sleep deprivation or emotional distress.
2.  Influencer’s power.  These “influencers” can be nearly anyone who develops a relationship of trust and confidence with the elder, including family members, caregivers, spiritual advisors, doctors and – yes – even attorneys.
3.  Improper actions or tactics.  Controlling the elder’s environment through isolation, poisoning their relationships with others, and using threats of physical violence or abandonment are all signs of undue influence.
4.  Unethical transactions.  As in the Civil Code definition (supra), taking an unfair or grossly oppressive advantage is a tell-tale sign.  Uncharacteristically giving away large sums of money or property without any consideration are obvious clues of undue influence and resulting financial abuse.
We’ve probably all read enough pamphlets and articles of general circulation about the tell-tale signs of undue influence and what to look for.  I’ve read scores of  psychological and psychiatric reports that categorize and compartmentalize the different mental aspects and deficits to look for – enough that it almost makes me go blind.
Sure, when preparing a case for trial, a forensic/geriatric/psychiatrist/neurologist expert witness will almost always be required to explain the specific factors of undue influence and how it impacted a client (patient).  But that’s way down the road.
The initial determination that an elder has been unduly influenced is a relatively simple matter of common sense.  Please remember the four characteristics mentioned above when conducting your initial investigation.
Your recognition of the abuse, and then taking action to protect the victim, is the contribution you have to offer as a professional advocate for the elderly.
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Elder Law Newsletter  January 3, 2011
 
Confidential Report for Mandated Reporters
 Most readers are probably aware of their responsibilities as “mandated reporters”, but a little refresher course never hurt anyone. This is just a quick overview, as we begin 2011, of who is a mandated reporter, a brief description of the “Confidential Report” adopted by the California Department of Social Services (CDSS) and what some of the reporting responsibilities are.

Who is a “mandated reporter”?  Well, darn near everybody.  Welfare & Institutions Code Section 15630(a) (WIC) states that it includes:  

  • Any person who has assumed full or intermittent responsibility for care or custody of an elder or dependent adult, whether or not that person receives compensation.
  • All licensed staff of a public or private facility that provides care or services for elder or dependant adults.
  • Any elder or dependent adult custodian.
  • All health care practitioners.
  • All clergy members.
  • All Adult Protective Services employees.
  • All local law enforcement agency employees.

    The CDSS adopted a form titled: “Confidential Report – Not Subject to Public Disclosure” that is to be used by mandated reporters who have a reasonable suspicion that an elder (or dependent adult) has been the victim of physical abuse, sexual abuse, abandonment, isolation, financial abuse, abduction or neglect (including self-neglect).

 The form is designed to provide information about the victim, the suspected abuser, the reporting party (who can remain anonymous if  they are not a mandated reporter), information about the incident, the type of abuse, and the reporting party’s observations and opinions.  
In addition, when financial abuse is suspected, the form asks for information about targeted bank accounts, powers of attorney, and trust accounts.
 
From the WIC definitions, practically everyone whose job involves working with elders, and particularly those who devote their work to combating financial abuse, are mandated reporters and required to utilize the confidential report when abuse is reasonably suspected.
For more information on mandated reporters and their responsibilities, click here.
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Elder Law Newsletter December 21, 2010
Reflections

I hope this newsletter finds everyone in good health and spirit.  I’ve really been lax in regularly writing this newsletter on elder law topics – articles that I think can benefit most people.  Bear with me … I’d like to share what has been the most impactful learning experience for me in 2010. That is:   Seeking help from other professionals who share the same passion of protecting elderly victims of financial abuse. I’m still learning that “no man is an island”.  Although every case I take on starts and stops with me, I’m learning to tap into the resources offered by a myriad of others … people who’ve  devoted the majority of their life’s work to helping seniors from getting ripped-off.  It’s amazing how these people can remove road blocks by suggesting services that I didn’t even know existed, or by simply listening to a problem and then sharing their similar experience and offering a possible solution. In no particular order, I’ve sought advice and asked questions of various branches of the Department of Public Social Services, the Riverside and San Bernardino County District Attorney’s Offices, law enforcement, home healthcare agencies, the C.A.R.E. Program (Curtailing Abuse Related to the Elderly), Independent Living Partnership, Adult Protective Services, Riverside County Counsel, offices of our state elected officials, Office on Aging, Inland Empire Economic Crime Unit, H.E.L.P. (Healthy Elder Life Program), the Australian Consulate … the list goes on and on. Many times, the person I’ve called might not know the answer, but offers the name of someone else who might shed light on the matter.  This assistance has often benefitted my clients by providing fresh insight and a new way of looking at the problem – and its possible solution. In the past, I’ve hesitated in making these calls … apprehensive that the person on the other end might feel inconvenienced, too busy, or unreceptive.  Yeah, once in a while, they are.  But overwhelmingly, I’ve found these people to be equally concerned about elderly victims and are enthusiastic to share their knowledge and experience.  Successful strategies that may have taken months to uncover, or may never have been found, are regularly received as a result of asking for their input. Humility gets easier for me, the older I get.  The old “I can figure it out myself” approach is a dinosaur.   Sorry for rambling, but a perfect example of this teamwork comes to mind.  Many years ago, when the C.A.R.E. Team was first forming, we only had about 10 members.   An issue came up concerning an elder who was in trouble.  My own “spotty dementia” prevents me from recalling the specific problem, but I do remember that each member who was at that meeting got on their phone and immediately started making calls to solve the problem.  These members, each from a different profession and with their own unique knowledge and experience, solved the elder’s problem within about 60 minutes.  I was stunned. Obviously, resolving a financial abuse issue isn’t going to happen with such speed in every case.  But the blending of ideas and actions from a diverse mixture of dedicated professionals to help solve a problem seems – to me – an obvious no-brainer.   Thanks for letting me ramble. Anyway, I want to thank everyone who has offered their assistance to me in the commitment we all share, including those whom I’ve not yet sought help from – but will – in 2011. 

Elder-Law-Advocate