Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients

December 4, 2018, 10:30 pm

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Deborah Ann Favorite sits in her Los Angeles apartment last month. Favorite’s mother died after a lapse in communication about the need to resume her thyroid medication. (Heidi de Marco/KHN)

“Oh my God, we dropped her!” Sandra Snipes said she heard the nursing home aides yell as she fell to the floor. She landed on her right side where her hip had recently been replaced.

She cried out in pain. A hospital clinician later discovered her hip was dislocated.

That was not the only injury Snipes, then 61, said she suffered in 2011 at Richmond Pines Healthcare Rehabilitation Center in Hamlet, N.C. Nurses allegedly had been injecting her twice a day with a potent blood thinner despite written instructions to stop.

“She said, ‘I just feel so tired,’” her daughter, Laura Clark, said in an interview. “The nurses were saying she’s depressed and wasn’t doing her exercises. I said no, something is wrong.”

Her children also discovered that Snipes’ surgical wound had become infected and infested with insects. Just 11 days after she arrived at the nursing home to heal from her hip surgery, she was back in the hospital.

The fall and these other alleged lapses in care led Clark and the family to file a lawsuit against the nursing home. Richmond Pines declined to discuss the case beyond saying it disputed the allegations at the time. The home agreed in 2017 to pay Snipes’ family $1.4 million to settle their lawsuit.

While the confluence of complications in Snipes’ case was extreme, return trips from nursing homes to hospitals are far from unusual.

With hospitals pushing patients out the door earlier, nursing homes are deluged with increasingly frail patients. But many homes, with their sometimes-skeletal medical staffing, often fail to handle post-hospital complications — or create new problems by not heeding or receiving accurate hospital and physician instructions.

Patients, caught in the middle, may suffer. One in 5 Medicare patients sent from the hospital to a nursing home boomerang back within 30 days, often for potentially preventable conditions such as dehydration, infections and medication errors, federal records show. Such rehospitalizations occur 27 percent more frequently than for the Medicare population at large.

Nursing homes have been unintentionally rewarded by decades of colliding government payment policies, which gave both hospitals and nursing homes financial incentives for the transfers. That has left the most vulnerable patients often ping-ponging between institutions, wreaking havoc with patients’ care.

“There’s this saying in nursing homes, and it’s really unfortunate: ‘When in doubt, ship them out,’” said David Grabowski, a professor of health care policy at Harvard Medical School. “It’s a short-run, cost-minimizing strategy, but it ends up costing the system and the individual a lot more.”

In recent years, the government has begun to tackle the problem. In 2013, Medicare began fining hospitals for high readmission rates in an attempt to curtail premature discharges and to encourage hospitals to refer patients to nursing homes with good track records.

Starting this October, the government will address the other side of the equation, giving nursing homes bonuses or penalties based on their Medicare rehospitalization rates. The goal is to accelerate early signs of progress: The rate of potentially avoidable readmissions dropped to 10.8 percent in 2016 from 12.4 percent in 2011, according to Congress’ Medicare Payment Advisory Commission.

“We’re better, but not well,” Grabowski said. “There’s still a high rate of inappropriate readmissions.”

The revolving door is an unintended byproduct of long-standing payment policies. Medicare pays hospitals a set rate to care for a patient depending on the average time it takes to treat a patient with a given diagnosis. That means that hospitals effectively profit by earlier discharge and lose money by keeping patients longer, even though an elderly patient may require a few extra days.

But nursing homes have to hospitalize patients. For one thing, keeping patients out of hospitals requires frequent examinations and speedy laboratory tests — all of which add costs to nursing homes.

Plus, most nursing home residents are covered by Medicaid, the state-federal program for the poor that is usually the lowest-paying form of insurance. If a nursing home sends a Medicaid resident to the hospital, she usually returns with up to 100 days covered by Medicare, which pays more. On top of all that, in some states, Medicaid pays a “bed-hold” fee when a patient is hospitalized.

None of this is good for the patients. Nursing home residents often return from the hospital more confused or with a new infection, said Dr. David Gifford, a senior vice president of quality and regulatory affairs at the American Health Care Association, a nursing home trade group.

“And they never quite get back to normal,” he said.

‘She Looked Like A Wet Washcloth’

Communication lapses between physicians and nursing homes is one recurring cause of rehospitalizations. Elaine Essa had been taking thyroid medication ever since that gland was removed when she was a teenager. Essa, 82, was living at a nursing home in Lancaster, Calif., in 2013 when a bout of pneumonia sent her to the hospital.

When she returned to the nursing home — now named Wellsprings Post-Acute Care Center — her doctor omitted a crucial instruction from her admission order: to resume the thyroid medication, according to a lawsuit filed by her family. The nursing home telephoned Essa’s doctor to order the medication, but he never called them back, the suit said.

Deborah Ann Favorite holds a photograph of her mother, Elaine Essa. The nursing home

and Essa’s primary care practice settled a lawsuit brought by the family. (Heidi de Marco/KHN)

Without the medication, Essa’s appetite diminished, her weight increased and her energy vanished — all indications of a thyroid imbalance, said the family’s attorney, Ben Yeroushalmi, discussing the lawsuit. Her doctors from Garrison Family Medical Group never visited her, sending instead their nurse practitioner. He, like the nursing home employees, did not grasp the cause of her decline, although her thyroid condition was prominently noted in her medical records, the lawsuit said.

Three months after her return from the hospital, “she looked like a wet washcloth. She had no color in her face,” said Donna Jo Duncan, a daughter, in a deposition. Duncan said she demanded the home’s nurses check her mother’s blood pressure. When they did, a supervisor ran over and said, “Call an ambulance right away,” Duncan said in the deposition.

At the hospital, a physician said tests showed “zero” thyroid hormone levels, Deborah Ann Favorite, a daughter, recalled in an interview. She testified in her deposition that the doctor told her, “I can’t believe that this woman is still alive.”

Essa died the next month. The nursing home and the medical practice settled the case for confidential amounts. Cynthia Schein, an attorney for the home, declined to discuss the case beyond saying it was “settled to everyone’s satisfaction.” The suit is still ongoing against one other doctor, who did not respond to requests for comment.

Dangers In Discouraging Hospitalization

Out of the nation’s 15,630 nursing homes, one-fifth send 25 percent or more of their patients back to the hospital, according to a Kaiser Health News analysis of data on Medicare’s Nursing Home Compare website. On the other end of the spectrum, the fifth of homes with the lowest readmission rates return fewer than 17 percent of residents to the hospital.

Many health policy experts say that spread shows how much improvement is possible. But patient advocates fear the campaign against hospitalizing nursing home patients may backfire, especially when Medicare begins linking readmission rates to its payments.

“We’re always worried the bad nursing homes are going to get the message ‘Don’t send anyone to the hospital,’” said Tony Chicotel, a staff attorney at California Advocates for Nursing Home Reform, a nonprofit based in San Francisco.

Richmond Pines, where Sandra Snipes stayed, has a higher-than-average rehospitalization rate of 25 percent, according to federal records. But the family’s lawyer, Kyle Nutt, said the lawsuit claimed the nurses initially resisted sending Snipes back, insisting she was “just drowsy.”

After Snipes was rehospitalized, her blood thinner was discontinued, her hip was reset, and she was discharged to a different nursing home, according to the family’s lawsuit. But her hospital trips were not over: When she showed signs of recurrent infection, the second home sent her to yet another hospital, the lawsuit alleged.

Ultimately, the lawsuit claimed that doctors removed her prosthetic hip and more than a liter of infected blood clots and tissues. Nutt said if Richmond Pines’ nurses had “caught the over-administration of the blood thinner right off the bat, we don’t think any of this would have happened.”

Snipes returned home but was never able to walk again, according to the lawsuit. Her husband, William, cared for her until she died in 2015, her daughter, Clark, said.

“She didn’t want to go back into the nursing home,” Clark said. “She was terrified.”

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Medicare Takes Aim At Boomerang Hospitalizations Of Nursing Home Patients

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2018’s States with the Best Elder-Abuse Protections

December 4, 2018, 11:00 pm

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Abuse happens every day and takes many forms. But vulnerable older Americans are among the easiest targets for this misconduct, especially those who are women, have disabilities and rely on others for care. By one estimate, elder abuse affects as many as 5 million people per year, and more than 95 percent of all cases go unreported.

Unless states take action to prevent further abuse, the problem will grow as America becomes an increasingly aging nation. The U.S. Census Bureau expects the population aged 65 and older to nearly double from 43.1 million in 2012 to 83.7 million in 2050, much to the credit of aging Baby Boomers who began turning 65 in 2011. And by just 2030, 1 in 5 U.S. residents will be retirement age.

Fortunately, states recognize that elder abuse is a real and growing issue. But sadly, only some are fighting hard enough to stop it. WalletHub compared the 50 states and the District of Columbia based on 14 key indicators of elder-abuse protection in 3 overall categories. Our data set ranges from “share of elder-abuse, gross-neglect and exploitation complaints” to “financial elder-abuse laws.” Continue reading below for our findings, expert commentary and a full description of our methodology. (Click to Continue)

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2018’s States with the Best Elder-Abuse Protections

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How Everyday Language Harms People with Disabilities

December 5, 2018, 10:00 pm

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At the end of an interview for a prestigious residency, I mention my physical access needs, making it clear that I can walk and manage some stairs.

“We’ve had wheelchair-bound fellows before,” my interviewer tells me.

As soon as I hear her say “wheelchair-bound,” I feel an all-too-familiar hollow in my stomach. It is as if I’ve been punched there. It is how I know a description of disabled people is awry.

I could tell her that “wheelchair-bound” is an inaccurate term, pointing out that no wheelchair user I know is bound to a wheelchair, that every wheelchair user I know has developed techniques and support to transfer into a bed, or onto a toilet. But, knowing that this is an important interview, I remain silent, which leaves my stomach feeling rather sore.

I feel this far too often. Many friends use the word “lame” to describe something, or someone, stupid. According to the Oxford Living Dictionaries, the definition of “lame” actually means “unable to walk without difficulty as the result of an injury or illness affecting the leg or foot.” But, over time, “lame” has come to connote something or someone stupid.

It is not only friends who use “lame” but also some well-known, liberal luminaries, such as Nobel Prize-winning economist and New York Times columnist Paul Krugman. In the 2012 article “An Unserious Man,” Krugman describes Representative Paul Ryan’s response to criticisms of his Medicare plan as “incredibly lame.” I’ve cringed when MSNBC’s Rachel Maddow spouts “lame” from her broadcasting desk. In a 2018 Slate article, Ben Mathis-Lilley uses “lame”in his description of the political messaging of Democratic Party leaders Nancy Pelosi and Charles Schumer.

Thus, the connection between disability and stupidity, between a physical trait and intellectual ability, lives in our popular lexicon. Why should this matter?

“Precision with language is essential,” branding expert Elizabeth Talerman told me in a recent email conversation. She continued:

We each attach a unique meaning to what we hear. We internalize language and interpret it based on our own experiences, from the past or the present, from our mood in the moment. Words are first processed in the limbic brain, our emotional center, before meaning is made through our rationalizing frontal cortex. Kick off the wrong emotion and all intended meaning may be lost.

The language we use reveals assumptions that we usually don’t realize. For example, disabled students are given “special education,” and disabled people are seen as having “special needs.” But there is nothing special about such education. The methods of learning might be different; there might be a need for certain accommodations. But how could the needs of the planet’s approximately one billion disabled people be called special?

It wasn’t until the 1970s that millions of students in the United States, as a matter of law, gained the right to receive the education they deserved. The Rehabilitation Act of 1973 required schools to make accommodations for disabled students after centuries of isolating and ignoring them. In 1975, the Education for All Handicapped Children Act enforced the right of children with disabilities to receive a free and appropriate education. There is nothing special about a “free appropriate education,” but many are still begrudged this legal right. If we didn’t call this “free appropriate education” special, might such rights be granted more easily?

How many times have you called someone a moron? When doing so, you are using a word coined by U.S. psychologist and eugenicist Henry Goddard. Goddard took “moron” from the Greek root moros, meaning dull or foolish. In true eugenic fashion, Goddard promulgated the idea that there was a correlation between low intelligence and criminality. To Goddard, so-called morons were a threat to the American social fabric.

In the first decades of the 20th century, the U.S. government oversaw the involuntary sterilization of 60,000 developmentally disabled Americans. In the Supreme Court’s 1927 ruling on Buck v. Bell, Oliver Wendell Holmes asserted that these sterilizations did not violate the due process clause of the 14th Amendment. In his decision, the much-lauded justice wrote the infamous line “Three generations of imbeciles are enough.” The ruling has never been expressly overturned.

When Goddard coined “moron,” the number of immigrants arriving in the United States was at record levels. JoElla Straley writes for NPR’s “Code Switch” that, “for his part, Goddard wanted to ensure there were no ‘morons’ among them.”

Writing in The New Yorker about recent media coverage of the group of migrants moving through Mexico, Masha Gessen notes:

Everyone, it seems, is calling the procession a “caravan.” The journalist Luke O’Neil has pointed out that the word’s Persian roots conjure the image of “people trekking across the desert with camels (ie terrorists of course).” It is less an organized trek than it is an “exodus,” a spontaneous movement of thousands who are fleeing a place more than they are pursuing a destination.

Would changing the language we use change how those deemed “other” are seen and treated? “The choice of each word may make the difference between piercing complacency or suffering the fate of indifference, between creating alignment or sowing the seeds of dissent,” Talerman observed in our conversation. “Language is the greatest tool we have for connecting with people.”

Inaccurate words deny that wheelchair users exist independent of their wheelchairs, assume that those of us who are physically disabled are stupider than non-disabled folks, begrudge the civil rights of disabled students, endanger those who are erroneously feared (like the migrants walking in the so-called caravan), and imply motivations that are instead mere projection. Inaccurate words not only sow misunderstanding but also dehumanize, which is probably why they are used — consciously or not — in the first place.

This is neither a matter of political correctness nor of hurt feelings. Underlying these words are gross misunderstandings and suspect motivations, which lead to wrongheaded policy, denial of legal rights, and mistreatment of those with perceived differences.

It’s no wonder that when I hear such words, my body revolts as forcefully as if I have been punched. Seemingly innocuous words can be just as violating as a fist. And sometimes they have just as cruel consequences — sometimes even longer-lasting ones.

We need to educate ourselves about the myriad words and phrases used to undermine the accurate description of disabled lives. We need to refrain from ablesplaining when those of us who are disabled point out these inaccurate words. We need to interrupt the use of such words, pointing out the inaccuracy in what is being said. We all need to think more clearly about what we say, as well as about what the words we use actually mean.

My residency interviewer’s words silenced me into inaction. In that situation, I didn’t feel empowered to interrupt and educate her about her inaccurate words. But my non-disabled husband did write to Paul Krugman about his use of the word “lame.” As far as we know, Krugman has not used the word since.

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How Everyday Language Harms People with Disabilities

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Elder abuse, exploitation takes a toll year-round

December 5, 2018, 10:30 pm

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Lieutenant Teresa Miller, who heads the criminal investigations division of the Crisp County Sheriff’s Office, reviews online information about elder abuse and exploitation. Miller routinely investigates complaints of elder abuse and exploitation, and says she sees a high number of these types of cases throughout the year.

'Tis the season for scammers and crooks to take advantage of the unaware. The victims are often the elderly, but holiday con artists don’t discriminate by age. People who exploit or abuse the elderly operate all year long, and it happens a lot more often – and to a lot more people – than one might expect, said Lt. Teresa Miller, the chief of the Crisp County Sheriff’s Office criminal investigations division.

“In fact, we had two reports today where overseas scam artists have called elderly people and made them believe they’re winning a car, and all they have to do is send a Western Union money order for $399 to pay the taxes,” Miller said. “Often in the case of at-risk elderly, they want to believe what [scammers] are telling them.”

Elder abuse is a crime that has become more prevalent as our population ages, and it takes many forms. It could be physical or sexual abuse, emotional abuse, neglect, and financial exploitation.

And, especially in the case of financial exploitation, the victims often know the perpetrators.

“Financial exploitation is the most prevalent,” Miller said. “We see family members who have control of their own parents or grandparents’ finances and then use those funds for their own financial gain rather than just taking care of the elderly person. That requires a very in-depth investigation.”

Investigating financial exploitation of an elder takes patience and expertise because it could be years before anyone learns a crime is happening.

“In many cases financial exploitation can mean hundreds of thousands of dollars, because it can go on for so long until someone catches on,” Miller said. “The elderly person has no idea something bad is happening to them.

Allan York knows this first-hand. He has a personal relationship with at least two elderly women who have been financially exploited, one of whom was taken advantage of by someone over the phone and another who was scammed by someone face-to-face.

“Financial abuse is affecting these elderly citizens right before our very eyes. There’s a lot of people suffering from it, and we need to put a spotlight on this problem,” York said.

In the case of the woman who was victimized by someone she knows, the financial exploitation was just the beginning of her problems.

“We’ve seen a financial, a mental and a physical strain on her. Her medicines were tampered with, and she almost died. That’s nothing compared to what she lost monetarily,” York said.

Investigators take financial exploitation of the elderly very seriously and work hard with each case to see that perpetrators are punished, but they go into overdrive when it comes to physical abuse or worse.

“If we find any physical abuse, they’re going to jail. It makes the crime ‘high and aggravated’ if you abuse anyone over the age of 65. Physical or sexual abuse of an elderly person is not going to be tolerated,” Miller said.

You can find out more about elder abuse by going online to aging.georgia.gov/abuse-neglect-and-exploitation-risk-adults-georgia or contacting the state Division of Aging Services’ Adult Protective Services at 1-866-552-4464.

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Elder abuse, exploitation takes a toll year-round

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Editorial: Protecting seniors requires funding from the Iowa Legislature

December 5, 2018, 11:00 pm

≫ Next: New Report on National Family Caregiver Support Program (NFCSP) Outcome Evaluation

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Child abuse is not simply a “family matter” others should ignore or dismiss. We all know this.

Educational campaigns and troubling news stories prompt people to take action when they believe a child is being mistreated. In fact, we feel obligated to report it to authorities.

Yet there is less public awareness and feeling of communal responsibility when it comes to mistreatment of older people. Elder abuse may not be on our radar, even though older adults, particularly those who are frail or have diminished cognitive function, can be just as vulnerable as children.

They need to be protected too, a point made in a recent report compiled by University of Iowa researchers for the U.S. Department of Justice.

Researchers focused their study on 1,000 square miles in east-central Iowa, including Cedar Rapids and Iowa City. They held meetings, conducted interviews, compiled information from law enforcement and reviewed laws, regulations and other data.

They found prosecution of elder abuse is a relatively rare occurrence. That means abusers go unpunished, seniors continue to suffer and the rest of us are in the dark about problems.

“One thing that really jumped out at us was a sort of acceptance or lack of awareness about elder abuse in general,” said Brian Kaskie, an associate professor at the U of I and co-author of the report.

Abuse is not necessarily physical. He’s heard stories about family members moving into homes and taking advantage of seniors. A bank worker shared an anecdote about an elderly customer's relative trying to withdraw thousands of dollars. A law enforcement officer said victims themselves frequently do not want to file charges against an abuser, particularly if it is someone they rely on for daily help.

Kaskie hopes eventually there can be as much awareness about senior abuse as there is about child abuse and domestic abuse.

“Protecting seniors is a bipartisan issue,” he said.

Iowa lawmakers can do more to help. They should begin by recognizing government is not the enemy, but the best entity for helping protect the most vulnerable people, including the more than 500,000 Iowans over the age of 65. And government can do its job only if it’s adequately funded.

Recommendations from the report include: increased funding for state and county attorneys to prosecute elder abuse; involving social workers and therapists in the investigative process; funding for individuals and organizations who can serve as guardians for elders; and public awareness campaigns.

Those things are not free. Yet the GOP-controlled Iowa Legislature insists on cutting taxes and trying to shrink the size of government. A lack of funding for state agencies has consequences for not only older Iowans, but all taxpayers who fund their health care through Medicare and Medicaid.

“Victims of elder abuse have an increased risk of hospitalization and death. Victims are also more likely to be placed in a nursing home and are at an increased risk of developing mental disorders such as depression and anxiety,” according to the report.

In 2017, the Iowa Department on Aging received about $250,000 in state appropriations specifically to support elder abuse prevention and awareness, according to the report. Yet budget shortfalls meant the use of those funds was limited to supporting efforts and making referrals to understaffed government agencies.

Iowans understand the importance of looking out for those who cannot look out for themselves. The people we elect to represent us need to make sure government has the resources to do it.

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This editorial is the opinion of the Des Moines Register’s editorial board: Carol Hunter, executive editor; Kathie Obradovich, opinion editor; Andie Dominick, editorial writer, and Richard Doak and Rox Laird, editorial board members.

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Editorial: Protecting seniors requires funding from the Iowa Legislature

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New Report on National Family Caregiver Support Program (NFCSP) Outcome Evaluation

December 6, 2018, 10:00 pm

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The Administration for Community Living (ACL) recently completed a two part evaluation of the Older Americans Act Title III-E National Family Caregiver Support Program (NFCSP). The newest report, Outcome Evaluation of the National Family Caregiver Support Program, is now available.

The NFCSP Outcome Evaluation focused on the following questions:

What types of organizational structures and/or approaches for NFCSP services are associated with the best participant-level outcomes?
Are services reaching the groups targeted by the Older Americans Act (OAA), including caregivers serving older adults with greatest social or economic need?
To what extent do NFCSP participants also receive other home- and community-based long-term support and services?
To what extent do NFCSP caregivers’ outcomes differ from those of caregivers who do not receive support and services from the NFCSP?

The two-part NFCSP evaluation includes a final process evaluation report, as well as examples of assessment tools collected from State Units in Aging:

Community Assessment Materials (PDF, 14.3MB)

General Customer Satisfaction Survey Materials (PDF, 2.23MB)

Grandparent Assessment Materials (PDF, 1.05MB)

High-Level Administrative Materials (PDF, 3.00MB)

Monitoring Materials (PDF, 3.93MB)

State Caregiver Assessments (PDF, 5.87MB)

State Care Recipient Assessments (PDF, 8.40MB)

Task Force Materials (PDF, 31.1MB)

Uniform Satisfaction Materials (PDF, 3.0MB)

Other Materials (PDF, 9.59MB)

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New Report on National Family Caregiver Support Program (NFCSP) Outcome Evaluation

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SC ranks last in elder abuse protections

December 6, 2018, 10:30 pm

≫ Next: An 81-year-old, his gruesome wound, and no explanation from caregivers: The story of Phillip Kennedy’s three days in a Toronto nursing home

≪ Previous: New Report on National Family Caregiver Support Program (NFCSP) Outcome Evaluation

Greenville, SC - South Carolina ranks at the bottom of a Wallet Hub study when it comes to resources in place to help prevent abuse.

Many states recognize that elder abuse is a growing issue, especially in nursing homes.

State Rep. Garry Smith (R) Greenville is working to introduce legislation that will make it more difficult for abusers to go from one nursing home to the next without being tracked.

"The agencies and departments do a real good job following up on the reports, but the legislature has done a very poor job. It's also something that we need to do to protect those who cannot protect themselves," Rep. Smith said in a phone interview.

Senior Action Executive Director Andrea Smith says that nearly 5 percent of our aging population will live in a nursing home at the end of their life.

According to WalletHub, one in five U.S. residents will be retirement age by 2030, meaning more aging adults will eventually need assistance and could potentially become vulnerable to care takers.

"Giving not only support for the seniors but for the family members that are caring for them is another important thing that we as a community really need to get our arms around. How do we support the folks that are taking care of seniors," Smith says.

Andrea and her staff know that knowledge is power, so they teach those who visit the center how to take care of themselves, emotionally, mentally and physically.

John and Shirley Wichmann appreciate the support.

They regularly visit the Senior Action facility to see friends and get educated on issues that affect them.

"There also are classes about things like abuse, if someone is hurting you or if something is happening how you can report it, how you can be careful and let people know or you can let someone here know or it can be taken care of," Shirley said.

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SC ranks last in elder abuse protections

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An 81-year-old, his gruesome wound, and no explanation from caregivers: The story of Phillip Kennedy’s three days in a Toronto nursing home

December 6, 2018, 11:00 pm

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It’s been more than a year since 81-year-old Toronto nursing home resident Phillip Kennedy suffered a leg wound so deep and wide it looked as if he had been sliced open by an axe.

His daughter, Kathleen Kennedy, said the home has never told her family how Phillip was injured, even though it happened in the middle of the day, in a licensed Ontario long-term care facility busy with nurses and personal support workers.

Kathleen Kennedy, with her brother Greg with their mother, Teresa. Phillip Kennedy went into a Toronto nursing home on Oct. 25 2017 for a short rehab stay and three days later, suffered a massive gash that was so deep it looked like someone had struck him with an axe. — Kathleen Kennedy, with her brother Greg with their mother, Teresa. Phillip

When Phillip was injured — three days after moving in — nobody from Hawthorne Place Care Centre could, or would, say how it happened. A provincial ministry of health inspector spent six days investigating but found no explanation for the cause of the injury. Phillip died in hospital three weeks later. Kathleen said his death report cited end-stage heart disease and kidney failure.

“If they had just said to me, ‘you know what, we dropped him,’ or even, ‘you know what, he was hit with an axe, we are sorry and this is what we’ve done to make sure it doesn’t happen to someone else,’ I would have accepted it. But there was none of that. Nothing,” Kathleen said.

“It is very unsettling.”

After Phillip was injured, on Oct. 28, 2017, the inspector interviewed at least eight employees, including the home’s administrator, physiotherapist and personal support workers. While the inspector’s final report, provided to the Star by Phillip’s family, didn’t find conclusive answers, it detailed four violations, including the “abuse and neglect” that led to the firing of five workers, along with unsafe practices while moving him from sitting to standing and from chair to bed.

Last week, a spokesperson for Hawthorne Place Care Centre told the Star that its internal probe, including the work of an outside investigator, found that Phillip’s injury was likely the result of a staff error.

“All indications are that the injury was unintentional — the result of an accident which occurred while the resident was being cared for by our staff,” the emailed statement said. “This is a highly regrettable incident, and we apologize without reservation to the resident's family.”

Kathleen said this is the first she has heard of the home’s findings.

Hawthorne Place is owned by Rykka Care Centres. Its managing partner, Responsive Management Inc., said the nursing home could not go into any additional detail because of “pending legal action” by the family. Last spring, Kathleen, a registered nurse, hired a Toronto law firm to look into her father’s case.

The family’s troubles began more than a year ago, after Phillip was discharged from a Richmond Hill hospital where he had spent two months after repeated falls, along with heart problems.

On Oct. 25, 2017, Phillip moved into a shared room on the first floor of Hawthorne Place, a long-term care home built in the early 1970s near Jane St. and Finch Ave.

His time there was expected to be short, just to get him steady on his feet again, so he arrived with little more than his clothes and rosary beads. If he struggled with his balance, Phillip’s mind was sharp and he loved to read, always with a newspaper or the BBC History magazine by his side.

Three days later, a personal support worker found Phillip lying in bed, his sheets stained with blood, the worker told the inspector. A deep slash in his leg cut to the bone. Staff huddled outside his room, entering and leaving, as he lay in bed, his eyes closed, murmuring in response to a nurse’s question: “Are you okay?” The nurse could not hear what he said.

That afternoon, Greg Kennedy, Phillip’s son, was driving with his mom to visit his dad when nursing home staff called to tell him of the injury.

“When I got there, he was in bed and his leg was bandaged,” said Greg, a supervisor at Molson Coors, currently on disability leave. “There were five workers standing outside his room and nobody could say what happened. He was incoherent. He looked awful. He was grey, a kind of death look.

“I was in tears when I left there. I thought he was going to die right then and there.”

Greg said the paramedics who rushed Phillip to Humber River Hospital told his family to file a complaint with the ministry about the severity of the injury and staff’s inability to describe how it happened. Kathleen contacted the ministry, and a few days later the inspector arrived to investigate.

The home’s administrator told the inspector that “discrepancies were found emerging from staff interviews.”

Staff didn’t immediately report the injury to the ministry or police, as is required when abuse is a possible cause. After the home’s administrator learned of Phillip’s condition two days later, the ministry and police were contacted, the report said. Kathleen and the administrator separately reported the injury to Toronto Police, who told the Star officers interviewed “at least two staff members” but could not confirm how Phillip was injured. Police closed the case in January.

Hawthorne Place fired the two personal support workers and three nurses who were involved in Phillip’s care that day, the report said. The nurses were reported to the College of Nurses of Ontario, the oversight body for nurses. A college spokesperson confirmed the nurses are being investigated.

Photographs taken by Greg show the gash was on the outer part of Phillip’s right leg, just below the knee. It was a deep, gaping wound.

The timeline of Phillip’s injury and how staff reacted to it are detailed in the ministry report.

At roughly 2:30 p.m. on October 28, a personal support worker called a registered nurse to Phillip’s room, pointing to blood on his bed sheet. When the workerrolled up Phillip’s pant leg, the nurse saw a “large laceration” on his outer right shin. The nurse reported seeing “some white stuff, appeared like bone.”

This registered nurse left Phillip without assessing him, the inspection report said, and went to ask another nurse to measure and cover the wound. The first nurse called the ambulance and Phillip’s family. Nobody called the police or ministry.

The second nurse went to another part of the home to find a measuring tape before arriving in Phillip’s room, later telling the ministry inspector the wound was “deep with sloughs and it was so bad (she/he) could not look at it to measure the wound.”

This second nurse left Phillip’s room without assessing him, the report said, and went to find a third nurse.

The third nurse arrived and measured the wound at five centimetres by five centimetres, and covered it with gauze and a bandage. Kathleen said she believes the wound was larger.

The ministry inspectionreport said the three nurses and two personal support workers directly involved “denied any knowledge” of the cause of the injury, with staff saying it likely happened between Phillip’s lunch and 2:30 p.m.

While the inspection report doesn’t conclude what caused the injury, it notes a personal support worker’s admission that she “transferred,” or moved, Phillip on her own, even though his care plan had been updated a day earlier to say he was so unsteady on his feet that he needed two people to help him. (He weighed more than 200 pounds.)

When the inspector later tried to re-create how Phillip had been transferred into bed, she found that her knee pressed against the knob and a flat piece of metal connecting the knob with the sides of the bed rail. The report said the flat piece of metal “was not smooth.” Kathleen said the inspector told her that this detail was considered an observation, not a conclusion of what caused the injury.

The inspector noted that the home’s director of care later “acknowledged the nursing team and the physiotherapy team did not collaborate with each other” in regards to Phillip’s assessments and the requirement he have two-worker transfers.

Phillip Kennedy was a family law lawyer in Hamilton until retiring in 2008 when he and his wife, Teresa, moved in with their daughter in Richmond Hill. — Phillip Kennedy was a family law lawyer in Hamilton until retiring in 2008

On the day of his injury, after Phillip returned from the dining room in a wheelchair, the lone worker helped him out of the chair and onto the toilet. Then the worker helped him move to his bed. The worker later told the inspector that Phillip did not fall during those transfers. The report said the worker acknowledged that an extra person was required.

After the injury and Phillip’s stay in intensive care, his family requested he be transferred back to Richmond Hill’s Mackenzie Health hospital. On Nov. 19, three weeks after his leg wound, Phillip died. Kathleen said the death report cited her father’s ongoing heart and kidney problems.

The law firm, Howie, Sacks and Henry, is talking to the home through its insurance company, Kathleen said. A lawsuit has not been filed.

“This is a shocking injury,” said the family’s lawyer, Melissa Miller. “No family should have to go through this. No resident of a nursing home should have to go through this.”

Full Article & Source:
An 81-year-old, his gruesome wound, and no explanation from caregivers: The story of Phillip Kennedy’s three days in a Toronto nursing home

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Fraud, waste, and abuse in the Medicare hospice program is ‘repellent’

December 7, 2018, 10:00 pm

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Like many Americans, I have a story about hospice care for a loved one. When my father was dying from complications of dementia and diabetes, hospice caregivers sat with him, provided pain relief, and helped him be comfortable. They also gave my mother peace of mind that her beloved husband was receiving kind attention in his final weeks. To this day, she refers to those hospice workers as angels.

Sadly, not every family’s story is a positive one.

Some patients experience days of pain or severe anxiety because their hospices fail to provide pain management and other needed services. Some are signed up for hospice without their knowledge, including some individuals who are not terminally ill.

The Department of Health and Human Services’ Office of Inspector General, for which I work, recently published a report examining hospice practices over a decade. It showed that hospices do not always provide the services that patients need and sometimes provide poor-quality care. We also found that patients and their families often do not receive crucial information to make informed decisions about hospice care.

We uncovered multiple abuses in our investigations:

Hospice recruiters inappropriately promised Medicare beneficiaries free housecleaning and other services that are not provided through hospice without telling them they would be signed up for the hospice benefit. That means they unknowingly gave up treatments that could cure, or at least manage, their conditions and instead received only palliative care.

In a North Texas case, nurses allegedly gave high doses of drugs such as morphine, regardless of whether patients needed it, to justify receiving the higher hospice payments. Some of these excessive dosages resulted in significant injury or death.

Or take the case of Larry Johnson’s 87-year-old mother, who had dementia. Two days before she died, he learned that she had been enrolled in hospice more than a year earlier, a decision that an individual with dementia shouldn’t make without assistance. “My mother needed basic care, but not hospice ― and especially not for a year and then some!” Johnson said in an interview with our staff.

Our investigation in her case yielded results: The owner of that hospice company received a 6-1/2-year federal prison sentence for running an elaborate, $20 million hospice scheme that signed up patients who were not dying. The hospice is permanently closed.

The idea that hospice care could abuse and neglect patients when they are at their most vulnerable, or exploit them for unjust enrichment, is repellent.

Because taxpayers bankroll poor care and fraud through the Medicare hospice benefit, policymakers need to take immediate action to implement safeguards against fraud, waste, and abuse of this important benefit.

Growth in the use of hospice makes it even more important to take action now. The latest Medicare data show that hospice use has grown over the past decade: In 2006, Medicare paid $9.2 billion for fewer than 1 million beneficiaries in hospice care. Ten years later, it paid $16.7 billion for more than 1.4 million beneficiaries.

Quality hospice care can provide significant comfort and support to terminally ill patients and their families and caregivers. But we must take steps to prevent both the very human toll and the economic toll that hospice fraud takes.

The Inspector General’s office made recommendations to the Centers for Medicare and Medicaid Services, which runs Medicare, in seven key areas. Although CMS did not agree with a number of them, we believe they are essential for weeding out poorly performing and unscrupulous hospice providers:

Congress should give CMS the authority to hold poor performing hospices accountable and take swift action when warranted.
CMS should take steps to tie payments to patient care needs and quality of care, rather than the current approach of paying a flat rate regardless of how many services a hospice provides, which can create incentives to minimize services and seek patients with uncomplicated needs.
CMS should provide more information to the public, especially Medicare beneficiaries, about hospice performance so consumers can effectively compare hospice providers. CMS now provides such information for nursing homes on its Nursing Home Compare website; a similar offering for hospice on Hospice Compare would help consumers make informed choices.

Patients and their family members can help guard against fraud by carefully reviewing the summary notices they receive from Medicare detailing the services for which Medicare has been billed on their behalf and report those that were not authorized or received.

Medicare beneficiaries who elect hospice care should receive high-quality services, and hospices should act with integrity when billing government health programs. Most already do that, and assist dying patients with dignity and compassion.

We strongly urge CMS and Congress to implement our longstanding recommendations to protect patients and their families from hospice providers that are exploiting this vital service.

Joanne M. Chiedi is the principal deputy inspector general for the Department of Health and Human Services.

Full Article & Source:
Fraud, waste, and abuse in the Medicare hospice program is ‘repellent’

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Brunswick lawyer disbarred over misuse of funds totaling $287K

December 7, 2018, 10:30 pm

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Maine Board of Overseers of the Bar announced Wednesday that Brunswick lawyer James Whittemore will not be allowed to practice law for 10 years, citing serious professional and ethical violations that include allegations he has misused approximately $287,000 of client funds.

The Times Record reported by Whittemore, 69, also faces criminal charges in Cumberland County. He was indicted on two counts of theft by misapplication of property and one count of theft by unauthorized taking, the Brunswick newspaper reported, adding that Whittemore pleaded not guilty to those charges.

"In each instance, Mr. Whittemore's conduct demonstrated violations of duties owed directly to his clients," Superior Court Justice Nancy D. Mills wrote in her Nov. 30 decision. "In addition, Mr. Whittemore violated duties that he owed to the court, to the public, and to his profession. … As noted above, in each of the five counts, there was serious and intentional misconduct that exacted both financial and emotional injury to vulnerable clients."

According to court documents, Whittemore:

Mishandled and is suspected of converting "approximately $151,981.06 derived from the assets" of a trust in "a matter then pending in the Cumberland County Probate Court."
Improperly received and converted $100,000 in a settlement of two wrongful death claims, which had been made directly payable to his client trust account instead of the client and her son.
Misappropriated $15,000 sent by a donor to the Brunswick-Topsham Land Trust to be held in escrow for an easement purchase.
Accepted $18,790 from a client he was representing in a "right-of-way easement issue … without performing the requisite legal work."
Accepted a $1,500 retainer from a client and "performed minimal legal services for [the client] and then converted the remaining advanced fee for his own use."

Court documents indicate the complainants have filed or will be filing for reimbursement through the Lawyer's Fund for Client Protection.

The Times Record reported that Whittemore's lawyer declined comment on the case on Wednesday.

Full Article & Source:
Brunswick lawyer disbarred over misuse of funds totaling $287K

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Nursing home employee accused of raping resident with dementia

December 7, 2018, 11:00 pm

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Click to Watch Video

HANOVER, IN (WAVE) – A Madison, Ind., man is behind bars, accused of raping a dementia patient.

David Garcia is charged with one count of rape, a level-three felony. Hanover police said it happened Saturday at the Hanover Nursing Center. Garcia was arrested Wednesday after a co-worker reported him having sex with a 74-year-old female dementia patient.

“He had been a past employee there and had returned recently to it as a CNA or certified nursing assistant,” said Chief Joshua Taylor, of the Hanover Police Department. “That’s the position he was working in the capacity of this evening.”

According to police records, a co-worker saw a man with his pants down and a woman on the bed, believed to be a patient, and reported it to co-workers immediately to be investigated.

When questioned, the victim told investigators she’d had sex with a man and pointed toward her groin.

“As of right now, with the information we have, we felt comfortable filing that rape charge, but will continue to review this going forward, if any additional charges will pop up during the investigation,” Jefferson County (Ind.) Prosecutor David Sutter said.

Garcia admitted he was in that room but denied the alleged assault, trying to explain to police why his bodily fluids may have been in the room.

Police said Garcia had prior arrests but nothing like this. Taylor said it’s so important to be careful when hiring people in charge of caring for vulnerable populations, like dementia patients.

“You do everything you can to ensure you have the right person for the position there,” Taylor said. “From the get go, a lot of times with investigations we have, there’s no indicators, nothing in the history, nothing in past to give the red flag.”

If convicted, Garcia could face up to 16 years in prison.

Sutter said his office is weighing the charges in the case seriously because of the kind of crime and the position of trust Garcia was in during the alleged rape.

“As a community, you always want to try to take care of your most vulnerable,” Sutter said. “We certainly feel like whether it’s infants or folks that are for whatever reason in nursing centers, those are people that we need to take care of and we obviously take that very seriously. Community safety is the utmost importance for my office and the Hanover Police Department.”

Hanover police said the investigation is ongoing, and they’re speaking with others at the nursing center to ensure there are no other victims but right now, they believe this was an isolated incident.

Garcia is expected to be in court Friday for an initial hearing.

The administrator at the Hanover Nursing Center declined to comment about the incident or about Garcia’s arrest, saying she couldn’t discuss the matter while it’s under investigation.

Full Article & Source:
Nursing home employee accused of raping resident with dementia

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Kansas family warns others that Medicaid can take your house

December 8, 2018, 10:00 pm

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“People need to know they are going to do this. People need to know they can take away your homes if they help your parents,” Janie Lucas warns.
(KCTV5 News)

ELMWOOD, KS (KCTV) -- A Kansas family is warning others that Medicaid can take your house.

It’s a lesson learned the hard way after a grandmother battled cancer and spent her final years in a nursing home.

“People need to know they are going to do this. People need to know they can take away your homes if they help your parents,” Janie Lucas warns.

Treva Bollman worked for years and paid taxes before cancer hit hard. There were surgeries and Bollman needed nursing care.

“It was a long hard battle,” Lucas said.

Bollman had Medicare and then Medicaid as a secondary insurance.

The family says the question if Bollman understood the strings attached.

The state recently put what’s called a “post death Medicaid Lien” on the property.

“We get this letter after she gets sick. Saying they want it now. it’s no longer mine and that’s not right,” Walter Bollman said.

“For the state to say we helped you now we want our money back. It’s almost half a million dollars,” Lucas said.

The family says the property is sentimental but question the value to others.

“It’s Elwood, Kansas. So, it’s worth maybe $50,000 to $60,000,” Lucas said.

“We are living on a sandbar so you have sinkholes coming up everywhere,” Walter Bollman said.

The family is sharing what happened to them to warn possibly help others.

“When someone goes on Medicaid, they are notified that at some point estate recovery is going to be a part of this process. Unfortunately, they are inundated with so much paperwork it probably doesn’t even get noticed,” elder car attorney Tim Winkler said.

Winkler points out every day 9,000 baby boomers turn 65, but many families are unprepared.

“If you get good advice there are steps you can take to lessen it or avoid it,” Winkler said.

For more information:

https://www.aarp.org/money/budgeting-saving/info-2016/plan-ahead-for-longterm-care.html

https://www.medicaid.gov/medicaid/eligibility/estate-recovery/index.html

https://www.agingwisely.com/eldercare-family-checklist/

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Kansas family warns others that Medicaid can take your house

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Grand jury to hear testimony in elderly exploitation case

December 8, 2018, 10:30 pm

≫ Next: Retired Orange County Judge Betty Lou Lamoreaux dies, but probate fight persists for her estate

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Kevin Saffold

Following a four-hour preliminary hearing, financial exploitation of the elderly charges against a Dothan man have been bound over to a Houston County grand jury.

Kevin Saffold is charged with three counts of financial exploitation after a 79-year-old woman told police Saffold told her to purchase two vehicles for him and that he would help increase her credit score so she could get a home mortgage.

Other charges against Saffold -- one count of second-degree theft of property and one count of second-degree possession of forged instruments – have been continued.

Dothan Police Investigator Daniel Grantham told the court the victim had contacted the police, stating she had received calls from a financial institution where two vehicles were financed in her name.

The state believes the victim did not understand fully what she was doing at the time she purchased the vehicles. Prosecutor Mark Johnson also stated with the victim being on Social Security, she did not have the means to make the payments.

Dothan Police first began an investigation into Saffold after an elderly exploitation complaint came in back in June. The victim claimed Saffold represented himself to be a paralegal and suggested she purchase two costly vehicles in order to build her credit and be able to qualify for a home purchase.

According to police, Saffold told the woman he would make the payments on the vehicles, a 2016 Dodge Ram Truck with a purchase price of $43,888.25 and a 2015 BMW X1 in the amount of $30,846.24. The purchases were made within two days of each other.

Police said no payments were made on the vehicles.

Representing himself, Saffold cross-examined the Grantham, showing the witness receipts from vehicle payments.

Saffold asked Grantham did he contact any of the financial institutions inquiring if the accounts were up-to-date, Grantham stated he had not. Saffold then presented a registration receipt for the Houston County Tag Office, authorizing Saffold to tag the vehicle in the victim’s name.

During the course of the investigation, police said they received a complaint that Saffold was in possession of a voided vehicle title. Police said Saffold pawned the title to a Lincoln car in the amount of $2,175 in July of this year, but it had been previously pawned a week earlier at a different title loan business. Police said no payments were made to the title loan businesses.

Court records show Title Cash sued Saffold in October, seeking possession of a 2007 Lincoln MKX-V6, or $4,500 as cash value of the property. This case is still proceeding.

During the investigation it was also determined Saffold allegedly represented himself as a family member of the 79-year-old victim at a local dental office, where he allegedly obtained dental work after having the victim sign the paperwork.

The alleged incident occurred between March 30 and June 13.

During Friday’s preliminary hearing Saffold presented paperwork stating payments were also being made on the dental work.

While the state argued Saffold took advantage of the victim, the defense argued the defendant was making payments and by making payments he helped the victim’s credit score increase. However, the victim surrendered the BMW to car lot. The Dodge pickup truck has not been located at the time. The victim told police she wishes to surrender the truck as well.

Full Article & Source:
Grand jury to hear testimony in elderly exploitation case

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Retired Orange County Judge Betty Lou Lamoreaux dies, but probate fight persists for her estate

December 8, 2018, 11:00 pm

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Trailblazer was 'persecuted by the very judicial system she served so well,' said a nephew.

Superior Court Judge Betty Lou Lamoreaux in 1988. (File Photo by Ana Venegas, Orange County Register/SCNG)

She was an accomplished opera singer, a film casting agent, an office secretary for Coca-Cola and, finally, Orange County’s first female Superior Court judge.

Appointed to the municipal bench in 1974 and then later to the superior court bench, Betty Lou Lamoreaux fought so fervently for children’s rights that the county’s seven-story family court in Orange is named after her: the Lamoreaux Justice Center.

Feisty to the core, Lamoreaux once commented to a reporter in a published report that she sometimes wanted to put parents in jail instead of their children, who had been scarred by broken homes and a lack of family morals.

Lamoreaux died Nov. 30 after a years-long struggle with Alzheimer’s. She was 94.

Born April 22, 1924, in Twin Falls, Idaho, Lamoreaux was raised by her aunt and uncle in North Ogden, Utah, upon her mother’s death. She was known to family and friends as “Lou.”

Lamoreaux obtained her bachelor’s degree in political science from UCLA and then her law degree from San Francisco Law School. She was admitted to the California Bar in 1957.

Probate tug-of-war persists

In the last years of her life, Lamoreaux was caught in a tug-of-war between relatives and probate court attorneys over how best to take care of her.

Despite her death, the probate court battle is far from over. Feuding family members and nearly 10 attorneys and conservators are angling for a piece of what’s left of her estate, a Newport Beach house valued at an estimated $1.5 million.

The probate professionals likely will be submitting bills worth hundreds of thousands of dollars for a judge to consider. Then there is the battle between two factions of Lamoreaux’s family for whatever is left.

Nephew Duff McGrath, Lamoreaux’s trustee, says he is trying to preserve her legacy and fulfill her wishes. And he regrets taking the case to probate court in an attempt to shield Lamoreaux and her estate from an in-law described in court documents as a “con man.”

What McGrath found was that by going to court, he opened the door for attorneys to be hired as well as conservators and beneficiaries and forensic accountants, each commanding high salaries. At one point, the court-appointed experts drove up Lamoreaux’s cost of care to $40,000 a month.

‘Persecuted’ by judicial system

“In the last remaining years of her brilliant life, ironically, she was persecuted by the very judicial system she served so well. Complacent judges and greedy, court-appointed officers began to drain her life savings on frivolous court filings during the time she needed protection,” McGrath said.

It is problem replayed throughout the nation. Probate judges take the power from family members and give it to strangers with big salaries, isolating the client and creating dispute. The longer the dispute, the longer the fees accrue for court hearings, motions and other legal proceedings. By keeping the case open, the experts keep the money flowing.

Not all probate cases end badly and expensively. But many do, to the point that reformers describe the attorney-driven system as: “isolate, medicate, steal the estate.”

“It’s happening again and again. It’s like a plague on our senior citizens,” Berkeley Vice Mayor Ben Bartlett, who is among those calling for state reform, said in a previous interview.

“We need to turn the operation upside down. What you see is an incentive to work up attorney fees,” Bartlett said. “There is no incentive to preserve the liberty of the person. We need greater oversight with more opportunity to challenge.”

Much of the McGraths’ criticism is aimed at Laguna Hills conservator Sally Cicerone — one of the more active conservators in Orange County. State records show she managed $26.7 million in assets in 2017.

After her first year with Lamoreaux, she billed the estate $42,210, according to records.

Among the family’s complaints: Cicerone waited four months to get a replacement for Lamoreaux’s broken wheelchair. And even then, the new chair didn’t fit and quickly broke. Cicerone billed $700 for her time. Cicerone declined comment Friday when reached by phone.

McGrath is staging a “reverent walk” for probate awareness at 10 a.m. Jan. 3 from the Lamoreaux Justice Center in Orange to the Superior Court in Santa Ana. For more information and to RSVP, contact jdnduffy@aol.com. On Jan. 4, McGrath said he will screen a full-length documentary free of charge on the probate scandal called “The Guardians” at the 800-seat Performing Arts Center in Laguna Woods.

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Retired Orange County Judge Betty Lou Lamoreaux dies, but probate fight persists for her estate

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Elder abuse reform returning to Minnesota Legislature as advocacy groups search for consensus

December 9, 2018, 10:30 pm

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DULUTH — The 2019 Minnesota Legislature will again take up reforms aimed at keeping vulnerable and elderly Minnesotans safe and holding accountable those who are charged with their care. Efforts to do so earlier this year failed.

Rep. Liz Olson, DFL-Duluth, who will be the majority whip in the DFL-controlled House when the Legislature convenes in a month, said she’s hopeful her chamber and the Republican-controlled Senate will come together to create meaningful change. So are her fellow lawmakers.

“We don’t have another year to put this issue on the backburner,” said Sen. Karin Housley, R-St. Mary’s Point.

After a StarTribune investigation last fall that found very few reported allegations of elder abuse were being fully investigated, a consumer-led task force in January called for “far-reaching policy and agency practice changes to prevent and deter abuse.”

Specifically, the group recommended:

Strengthening and expanding rights of older and vulnerable adults and their families
Enhancing criminal and civil enforcement
Developing new licensure frameworks for assisted living and dementia care
Improving licensing regulation, enforcement, investigations and reporting

A bill born of those recommendations did not get a hearing.

Housley, chairwoman of the Senate Aging and Long-Term Care Committee, shepherded a bill to allow electronic monitoring of residents, require residents and family members be notified of abuse investigations, increase oversight of the Office of Health Facility Complaints and expand the Home Care Bill of Rights, among other initiatives.

Gov. Mark Dayton vetoed the bill as the session crashed to a close in May.

Since then, stakeholders across six working groups have been working to find common ground.

“We’ll start over, and hear bills early on where there’s agreement and work out the details where there isn’t,” said Rep. Jen Schultz, DFL-Duluth, who will be chairwoman of the House subcommittee on long term care.

Requiring assisted living facilities to be licensed is one issue where there is industry support.

“I do think we absolutely need to have a licensing structure for assisted living facilities. Minnesota is way behind the rest of the country on that particular measure,” said state Sen. Tony Lourey, DFL-Kerrick.

Gov.-elect Tim Walz agreed there is a need for better oversight.

“In many cases, it’s an industry that has grown rapidly with an aging population, and we haven’t quite figured out how to keep up with that,” he said.

Housley said she’ll consider all proposals the House sends over.

“Some of the things I’m hearing go too far for me and my constituents,” she said. “But I’m always going to have that discussion, and absolutely we’ll sit down and work together.”

Little oversight

Seven days newspapers piled up. Seven days he was missing from meals.

It took seven days for someone to realize that Kristine Sundberg’s father had died in a senior living facility. In the months that followed, Sundberg found she had little recourse to hold the facility accountable.

“I went to start looking at who are the authorities? I was blown away you could have no oversight of a facility like that,” she said at a meeting of a senior group last month.

Sundberg is now the board president of Elder Voice Advocates, an advocacy group that was part of the coalition that called for “far-reaching” reforms.

Industry group LeadingAge Minnesota, which represents more than 1,100 senior care-focused organizations, is open to a number of changes.

“We believe the working groups have provided the foundation from which to build, particularly in the areas of assisted living licensure, dementia care standards and electronic monitoring,” LeadingAge Minnesota CEO Gayle Kvenvold said.

That broader coalition should signal success early in the session, Kvenvold said.

“When we get to the details, that it is perhaps where it is most difficult to find that consensus, but I’m more than hopeful, in fact I’m optimistic, that we have broad enough agreements around some of the core principles,” she said.

Elder abuse resources

Call 911

Call the Minnesota Adult Abuse Reporting Center at 1-844-880-1574

Call the Ombudsman for Long-Term Care at 651-431-2555

Reach the Office of Health Facility Complaints at 651-201-4200 or health.ohfc-complaints@state.mn.us or visit http://bit.ly/mnOHFC

Full Article & Source:
Elder abuse reform returning to Minnesota Legislature as advocacy groups search for consensus

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‘I’m Petitioning … for the Return of My Life’

December 9, 2018, 11:00 pm

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When Phyllis Funke hit bottom, the court appointed a guardian to prop her up. The remedy is like prison, she said. But “at least in prison you have rights.”

The last weeks that Phyllis Funke could legally make decisions for herself, she climbed into bed, planning to stay there for a while. It was the end of 2016 and she felt disillusioned with the election and wounded by her brother’s recent move to Texas.

She wasn’t considering suicide, she said. She just needed to go under the covers until she could figure out how to deal with the rest of her life, so totally alone.

She had credit cards, a car, friends and financial advisers in Maine and New York.

When a caseworker from Adult Protective Services and a city psychiatrist entered her apartment on March 3, 2017, clipping the security chain because she did not answer the door, she was unraveling emotionally and physically, at risk of becoming homeless or worse. She had no idea what price she would pay for the intervention.

“I’ve been bullied, blackmailed and stripped of the things I need to live, including my money,” she said on a recent afternoon. “Everything has been taken away from me. I have no access to my bank accounts. I don’t have the money to pay for the medications that I’m prescribed. I don’t get mail. I can’t choose my own doctors.”

Ms. Funke had entered the world of adult guardianship.

In a city like New York, where people are used to looking past their neighbors, how often do you see someone and ask yourself, Is that person O.K.? Should I call someone? Maybe they’re older and not moving well. They look adrift in the produce aisle, or you pass their open apartment door and you can’t see the floor for the clutter. You’re a paramedic and they’re refusing to go to the hospital after a bloody fall. It’s your mother or your uncle, and you’re worried about the bills piling up, or the email scams or the sudden loan to a stranger.

You bandage the wound or you promise to check in tomorrow, or you turn away and get on with your life.

Or you call Adult Protective Services. After all, that person needs some sort of protection, doesn’t she?

For Ms. Funke, that call came from the management of her building, after she didn’t respond to court motions to evict her for hoarding.

Ms. Funke, 77, has a master’s degree from Columbia University, a pilot license and — she believes — several hundred thousand dollars in investments, mostly an inheritance from her parents. She is a scuba diver, an avid reader and a global traveler. She has lived in the same cheap apartment for 41 years. If it were up to her, she said, she would be sailing in the Marquesas Islands in French Polynesia right now.

She is also, in the eyes of New York State, an “incapacitated person.” She has been deemed unable to manage her personal needs and property, or to understand the danger she had fallen into.

What started as a complaint about clutter grew to affect every aspect of her existence, including her right to make basic decisions about her life, own a gun or enter into certain legal contracts. Her appointed guardian, a former police officer, said he was unsure whether Ms. Funke had the right to marry.

“I feel as if I have absolutely no rights at all in the country in which I was born, and therefore in the rest of the world,” Ms. Funke said. She compared her situation to being in prison, then thought better of it. “It’s worse than incarceration,” she said. “At least in prison you have rights.”

If you have heard at all about guardianship for older adults, chances are that it has been about a predatory guardian who plunders the estate of a helpless older person. In New York, the poster victim is a Brooklyn judge named John Phillips, whose guardians sold off more than $20 million of his real estate and left him to freeze to death in 2008 in a facility unlicensed to treat people with dementia.

Judge John Phillips built a small real estate empire in Brooklyn, including the Slave Theater. When he was put in guardianship because of dementia, he lost everything — including his life.CreditChester Higgins Jr./The New York Times

Last month, the United States Senate Committee on Aging called for massive reforms in the guardianship system, warning that “unscrupulous guardians” have used their position to get control of vulnerable people and then “liquidate assets and savings for their own personal benefit.”

When I started to look into guardianship, I expected to find many such clear-cut cases. In New York, anyone can petition to have someone declared incapacitated. A judge may then appoint a family member or a third party, usually a lawyer, to be guardian over the person’s physical needs, financial affairs or both. Critics of guardianship say these strangers have open license to raid their wards’ estates.

But as I met families in contested guardianships, more often the conflicts involved sibling infighting, with children battling for control of their aging parents’ assets, crying foul if the courts did not side with them.

A retired banker in Brooklyn, for instance, was placed under guardianship after two of her children accused a third of stealing from her. Now they are all in court.

On Long Island, a son was trying to keep his frail, blind mother at home, battling a daughter and a guardian who wanted to move her to an assisted-living facility. The son blamed his sister and the guardian and the judge and the court evaluator and a real estate broker.

On Manhattan’s Upper West Side, a mentally ill woman who was living with her mother became homeless after the mother’s guardian obtained a court order barring her from the apartment, because he said she was interfering with the mother’s care. These families, too, are in court.

Guardianship was where the breakdowns of modern life — broken families, broken health, broken finances and broken bureaucracy — tumbled together in a system that appeared to bring out the worst in people: secretive, confusing and run by lawyers, with extraordinary powers over vulnerable individuals. It was also the last defense for lives that had come undone.

Then there was Phyllis Funke.

Her letter of introduction began, “Permit me, please, despite the above-noted ‘situation,’ to introduce myself. (Assuming ‘I’ still exist; as I trust you’ll gather from the accompanying ‘tale,’ I’ve an officially appointed guardian who’s doing his darnedest to eradicate ‘me’ — possibly violating New York City and State laws while denying me all my assets, civil rights, and often telephone service).”

Ms. Funke was something different.

She was a journalist and had written freelance articles for The Times, among other places. She said she’d reported from more than 150 countries. Her father, Lewis Funke, had been a drama editor and critic at The Times. Roy Cohn, Senator Joseph McCarthy’s notorious counselor, was a distant relation; Dick Morris, the controversial former political consultant, was her stepbrother.

When the city workers entered her apartment that day, they found her malnourished, dehydrated, unaware that she was under eviction proceedings or that she had not paid the rent in months. There was almost no food in the apartment, and clutter throughout.

As Ms. Funke remembered it, “They asked me who the president was, and I said, do I really have to say that name?”

She could not say how she got in her mental state; maybe it had to do with a lack of sleep. “I was eating less and less,” she recalled later. “I had pasta, and when I ran out of sauce I used Worcestershire sauce. There were cans of tuna but I couldn’t find a can opener, so I used a hammer and an awl.

“The closest I can come is to say I dissociated,” she said. “I checked out.”

In the coming months, while she recuperated in a nursing home, the protective-services agency petitioned the court to declare her incapacitated and place her under guardianship.

In court, the city psychiatrist testified that she suffered from “unspecified bipolar and related disorder, rule out bipolar II disorder, hoarding disorder and unspecified personality disorder.”

John DiGiacomo wanted to keep his mother, Agnes, in her home with him. Transfer to an assisted living building, he said, would kill her. His sister and a guardian disagreed.CreditLily Landes for The New York Times

The designation “rule out” means that further examination was needed to rule out the disorder; according to Ms. Funke, no one ever conducted this examination, and the court records do not indicate any further evaluation. At one court hearing she appeared lucid and persuasive; at the next she was barely coherent.

The judge, Shawn T. Kelly, appointed a lawyer named Gil V. Perez to be her guardian, and suspended the eviction proceedings. It was for her own good.

Nancy Yonge, a friend of Ms. Funke’s from Smith College, saw the case differently. She had visited in late 2016, and found Ms. Funke lucid, planning her next travel adventure.

“She had financial advisers locally and in Maine who were looking after her resources,” Ms. Yonge said. “I do believe this case is all about the money. If she didn’t have money, they wouldn’t be after her this way.”

By the time I visited Ms. Funke this summer, she said that her dissociative state had passed, and that she was “sentient.”

Her apartment: books galore, yarn sticking out of a cabinet door, couch piled with knitting supplies and a laptop, wall art from her travels, room for two people to sit. Nothing outrageous. The next time I returned the papers had doubled, covering the couch and parts of the floor. She was working on her case, she said.

She produced a letter from a psychiatrist declaring her stable and “perfectly competent to handle all her affairs.”

In a country that guarantees the right to life, liberty and the pursuit of happiness, at what point does a person forfeit the right to make bad decisions?

Some numbers would be helpful here: how many people are in guardianship, what assets they have, how many petitions are accepted or rejected. Unfortunately, those numbers do not exist in any meaningful way. Guardianship records are kept separately by each of New York’s 62 counties, with no standardized reporting and no state or city totals. Other states are similar.

“Why are there not systems in place?” asked Pamela Teaster, director of the Center for Gerontology at Virginia Tech University, who is studying New York’s guardianship system. “When you look for a shirt on the internet, your email will be filled with ads for shirts. We can’t track who’s under guardianship and their ages and health status.”

A “best guess” by the National Center for State Courts put the number of people in guardianship nationally at between one million and three million. In Manhattan, a database used by the court lists 2,596 guardianship cases for incapacitated adults, though some of these people may have died.

Other numbers do exist. Since last August, when the process started, Ms. Funke has been billed $16,800 by her court-appointed lawyer; $3,437 by a court evaluator, who deemed her in need of guardianship; $5,000 by her first temporary guardian, Mr. Perez, whose original request for $13,790 was slashed by the judge; at least $9,050 by her current guardian, who took over last November; plus money for a geriatric care manager and home attendants, whom Ms. Funke resents. (All fees must be approved by the judge.) Whenever the various players convened, the meter for Ms. Funke ran at close to $1,000 an hour, for a process she did not want.

When New York enacted its statute governing guardianship for older or frail adults, Article 81 of the Mental Hygiene Law, in 1992 (a different statute covers people with intellectual or developmental disabilities), it was considered a progressive model, requiring guardians to provide the least restrictive conditions possible and consider their wards’ preferences in all decisions.

“It’s a great statute,” said Kristin Booth Glen, a former judge who helped write Article 81 and now advocates for an alternative to guardianship called supported decision making. “And if people actually applied it, we wouldn’t have a lot of people under guardianship. But they don’t. That’s the problem.”

Ms. Funke wanted to hire a cleaning service for her clutter. But a geriatric care manager insisted on trained home attendants. Ms. Funke saw the attendants as unwanted intruders.CreditLily Landes for The New York Times

Instead, she said, judges have found it safer to overprotect people, and guardians, who bill their wards at steep hourly rates, have only their own moral incentives to do a good job — their clients are too incapacitated to object, and court monitoring is minimal. How minimal? Though the statute requires guardians to report on their wards’ assets and care within 90 days, a study of cases in 14 New York counties found that it took an average of 237 days, and then 210 days before anyone read it.

This leaves families feeling powerless and uninformed. Bars to entry are low: in New York, aspiring guardians must complete a one-day certification course. A 2010 report by the federal Government Accountability Office found that the courts conducted no background checks, relying on the applicants to disclose any criminal convictions or recent bankruptcies.

Once someone is under guardianship, it is very difficult to get out, because any resistance can be treated as evidence that they are at risk to themselves, so they need protection. For emotionally fragile people, the stress of guardianship — of paying to have your rights transferred to someone else — can make them even more fragile. And if a relative opposes a guardian’s actions, everyone involved — the guardian, lawyers for both the guardian and the ward, the court evaluator and possibly others — can bill the ward for their time.

“It’s total overkill, it’s completely unconstitutional and it’s done every day,” Ms. Glen said. “And it’s done in the name of protection. And the real question is, does it actually protect people? There’s no evidence that it does. When you give one person total power over another person’s life, including the power to isolate that person, you’re setting them up for abuse and neglect and exploitation.”

Guardians and judges complain that the system is vastly underfunded, and that most wards have little or no assets to pay for time-consuming work. Several nonprofit organizations provide guardianship for poor individuals.

Jean Callahan, who oversees low-income guardianship cases as attorney in charge at the Legal Aid Society’s Brooklyn neighborhood office, likened guardianship to nursing homes. “It’s not what anyone would choose, but I’m glad they’re there,” she said. “It’s a blunt instrument, but it does solve problems sometimes.”

Even then, though, it transforms one sort of bad situation — the descent into helplessness — into another, which is a supported death. There are no happy outcomes.

Phyllis Ellen Funke grew up in the Parkchester section of the Bronx and later Mount Vernon, a high-achieving teenager with a lust for travel and occasional bouts of depression. She wanted to be an actress, she said, but turned to journalism after her father threatened to thwart her in order to protect her from the casting couch. “He would never believe there was an editing couch,” she said, alleging a demand for sex from an editor at a major Jewish publication. She mentioned other people who sabotaged her career or wounded her. It was a theme of her conversation.

“She doesn’t have delusions,” her brother, Michael, said. “She can have strong opinions.”

Friends thought she never got over her father’s disapproval. She got writing assignments from prestigious publications but never turned them into an income of more than $5,000 or $6,000 a year.

Her rent, set at 30 percent of her net income, once dropped to $97 a month.

“I remember almost constant complaining about her father,” said Morton Fleischner, a friend from journalism school who went on to be a producer at ABC News.

Ms. Funke traveled and wrote and traveled and wrote. She acquired stuff on her travels and put it in her apartment, and acquired research materials for future trips and put these in her apartment as well. She bought scuba gear from the shop next door. She bought yarn for knitting. In 2004, the building moved to evict her for hoarding, but her parents helped her tidy up.

Bill Lambrecht, 81, a neighbor and friend for more than 30 years, dismissed her clutter as a harmless eccentricity. “Her apartment was always really messy,” he said. “I’d see pennies on the floor, clothes shoved everywhere. She doesn’t hoard things. She just throws things on the floor.”

Mr. Lambrecht accompanied Ms. Funke to a court conference this August. He had been a guardian for an older woman once, and did not think Ms. Funke needed that level of oversight. At the conference, Judge Kelly called Ms. Funke “a brilliant woman,” but he added, on the guardianship question, “That ship has sailed.”

The judge offered to address any problems she was having with her new guardian, Charles Barbuti, adding that this was not the time to reopen the case — for that she had to fill out a form called an Order to Show Cause. He had explained that last time, Judge Kelly said. Ms. Funke began at the beginning. Digressions opened into other digressions. When Judge Kelly stopped her, she simply started again.

“I’m begging you,” Judge Kelly said. “I have spent more time on your case than on any single other case on my docket.” He ended the conference to hear the next case.

Mr. Lambrecht said: “She’s lucid, intelligent and knows how to take care of herself, mostly. She never cuts to the chase on things. But she’s not a bad person in any way. She’s very lonely. She’s what you’d call a noodge.”

Outside the courtroom Ms. Funke snagged Mr. Barbuti.

“I need money to pay for my medication.”

“Send me the bills, I’ll pay them.”

She could not do this, she said, for a simple reason. “I’m not taking the medication.”

It was a standoff. Mr. Barbuti billed $250 an hour. Sheila O’Brien, the geriatric care manager, stood by. She billed $150 an hour, plus $75 an hour for travel time to and from her office in Connecticut.

The judge ordered home-care aides to tackle Ms. Funke’s clutter — twice a week, four hours each time. Ms. Funke wanted to hire a cleaning service instead. Often she refused to allow the home attendants into her apartment. This was seen as noncompliance, further grounds to continue guardianship.

“I want to see this work for you, I really do,” Judge Kelly told her. “I know you don’t want this. Help me make it work.”

“At one point early on I had about $850,000. It’s now gone and going faster. They won’t stop being after me until I’m on Medicaid or worse.”CreditLily Landes for The New York Times

If you made that call to Adult Protective Services about Ms. Funke, did you do the right thing?

The initial intervention brought her back from the edge of malnutrition and dehydration. Judge Kelly stopped the eviction proceedings and ordered help to keep the clutter from returning.

But at what cost?

In Ms. Funke’s view, the process was an assault on her liberty — and in one instance, on her person. Before a court hearing last November, when she refused to get out of bed, the guardian, Gil Perez, forced the issue.

What happened is in dispute.

Ms. Funke said Mr. Perez dragged her out of bed, slammed her head repeatedly against the wall, then dragged her out toward the elevator in her nightgown. At the hearing that day, Judge Kelly noted that she was disheveled and unresponsive. “Ms. Funke,” he said, “you just don’t seem yourself to me today.”

Mr. Perez did not respond to requests for comment. At the hearing he told the judge, “Today, getting her to this court was quite an adventure.” Ms. Funke said nothing.

Nathan Villada, a paramedic who was helping Ms. Funke after her initial crisis, cleaning the apartment and taking her to medical appointments, said Mr. Perez was physical but not violent in the way she described. “This was when Phyllis was doing really, really badly mentally,” Mr. Villada said.

“She was yelling obscenities and it seemed like she was making aggressive movements toward him. So Gil started grabbing her hands. And that just made her more aggressive. Gil pushed her against the bookshelf more as a restraint, not slamming her. My personal preference, I don’t think there’s a necessity to touch someone like that. She started yelling out, ‘Help, help, I’m being raped.’ He pushed her out into the hallway, but he didn’t drag her on the floor.”

Ms. Yonge said Ms. Funke had called her at the time and told her about the episode, describing it as an “assault.” “She was in tears about it,” Ms. Yonge said.

Over time, Ms. Funke began to see this encounter as the root of her problems, and all the court’s interventions as more harmful than helpful. If she hadn’t been roughed up, she wouldn’t have been listless in court that day. If she hadn’t been listless, she would have persuaded the judge that she did not need a guardian.

Ms. Funke also said that a social worker from Adult Protective Services propositioned her and touched her inappropriately, and that Mr. Villada and his girlfriend had stolen from her. Whatever the validity of her charges, the anguish she feels is clearly real.

“I knew nothing really until this package of papers came,” Ms. Funke said. “I believe that that was when I first heard of something called the temporary guardian.”CreditLily Landes for The New York Times

Mr. Barbuti, who succeeded Mr. Perez as her guardian, said he had not looked into her charges. That was police work, he said, and he was no longer in that line. (He was a captain in the Bronx until he retired in 2011.) “I can’t subpoena people,” he said. “Interviewing people and giving Miranda warnings are far beyond the ambit of what I can do.”

It can all be maddening. Claude Pepper, a congressman from Florida, once called guardianship “the most punitive civil penalty that can be levied against an American citizen, with the exception, of course, of the death penalty.”

One day in her apartment, Ms. Funke tried to refuse a scheduled visit from Ms. O’Brien and a home attendant. They came up anyway.

Ms. Funke treated them with open disdain. The attendant pointed to a creased throw rug on the floor. “We talked about this, Phyllis,” she said. Risk of falls. Ms. Funke saw the apartment through different eyes, as a journal of her travels.

“Each rug means something to me,” she said. “Each has a story attached to it.”

Maybe this wasn’t prison, but for Ms. Funke, it was four walls and no easy way out. Was there money left in her investment accounts? Even the court didn’t know. Only the guardian had access to her records.

Ms. Funke said Mr. Barbuti often failed to give her the $150 a week allotted by the court, and that he was late paying bills for her parking garage, car insurance, her phone and internet, and that her supplemental health insurance was expired. In court Mr. Barbuti told the judge that he could not pay some of her bills because she refused to provide them to him.

Some days it seemed like she spent more time fighting with Mr. Barbuti over her bills than it would take to manage them, and they were still a royal mess, she said.

Mr. Barbuti said people had the wrong idea about guardians, that their powers were limited to what the judge gave them. New York also limited runaway fees: if a guardian billed more than $75,000 in a year, he or she could not take any new cases the following year.

“There’s a misconception about guardianship, that somehow or other you become that person’s alter ego,” Mr. Barbuti said. “That’s just not the case. All you can do is what the court tells you you can do.” He added: “I like this kind of work. I feel there’s a chance to help somebody and make a difference in their lives.”

If you were Ms. Funke, shouldn’t you be allowed to withdraw into the covers if you wanted to? And the clutter in your apartment — couldn’t people understand that a writer needs materials around? Even if she were evicted, she had money to start somewhere else. Courts evict people with lots less.

If you were Judge Kelly, what would you do? Would you want to be the judge who left her vulnerable and unprotected?

Mr. Barbuti said the question of guardianship was a complex one.

“People should have the right to make their own decisions, even if you might look at it and I might look at it or a judge might look at it and say that’s not a good decision,” he said. “I don’t think the government should be making decisions like that for people. I think people should be able to make bad decisions. Within bounds.”

What these bounds were, he could not say.

Ms. Funke said she just wanted to get on with her life. As she approached 80, she worried that she might spend the rest of her years fighting to get out of guardianship. So she fought harder.

She remained on probation at her building.

By early December she was still writing her Order to Show Cause. It began, “I’m petitioning, very simply, for the return of my life. The chance to hope again, to dream again. And live the years that remain in a fulfilling and fulfilled manner. Too much has already been destroyed — much improperly; possibly illegally. And primarily — -carelessly, selfishly and pointlessly.”

Fifteen pages later, it still had a long way to go. She was working on it, she said.

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‘I’m Petitioning … for the Return of My Life’

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Former bank manager accused of stealing $97K from elderly customer

December 10, 2018, 10:00 pm

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Britt K. Landsperger

CONCORD — A former bank manager was arrested Friday and charged with seven felonies, alleging she stole more than $97,000 from an elderly woman, according to a statement released by New Hampshire Attorney General Gordon J. MacDonald.

Britt K. Landsperger, 46, of Stratham, was charged with seven Class A felony counts of theft by unauthorized taking, according to the statement. The arrest was the result of a joint investigation conducted by the state Attorney General’s Office and the Portsmouth Police Department.

The charges allege that between 2013 and 2018, Landsperger obtained or exercised unauthorized control over money from seven bank accounts belonging to a 68-year-old woman, with a purpose to deprive her thereof, and the value of the money removed from each account exceeded $1,500, according to MacDonald. The total money taken from the accounts exceeded $97,000.

Landsperger was an employee of the bank and the 68-year-old woman was a customer, MacDonald says. The statement did not indicate at which bank the thefts occurred.

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Former bank manager accused of stealing $97K from elderly customer

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Statutory durable powers a tool to avoid guardianship

December 10, 2018, 10:30 pm

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A little more than a year ago the Texas Legislature made substantial changes to the law establishing a Statutory Durable Power of Attorney (SDPOA). Given those changes, made effective September 1, 2017, persons who created a SDPOA prior to should review those instruments with their attorneys. As important as it is for those with SDPOAs to revisit them, a more fundamental problem exists concerning SDPOAs: many, if not most, people don’t have a good understanding of what a SDPOA is and why they need one.

A Statutory Durable Power of Attorney is a document which gives a designee power to act as an agent for, and to act in place of, the person creating the POA. The document must be signed by the principal – the one granting the power - and it must be notarized. The instrument grants the agent authority to handle whatever items of business the principal has designated to the agent. Under a SDPOA, the principal may grant all or some of a broad list of powers to handle transactions involving real estate, tangible property, stocks and bonds, commodity and options, banking and other financial institutions, business operating, insurance and annuities, estate, trust and beneficiaries, claims and litigation, personal family and maintenance, federal benefits, retirement plans, tax matters and even digital assets.

The SDPOA is a powerfully effective instrument that can often be used to prevent the necessity of an expensive guardianship proceeding and naming of a guardian of the estate of an incapacitated person. For this reason, all persons should execute a SDPOA for themselves.

In general, persons creating a SDPOA intend to handle their own financial affairs until such time as they are incapacitated or incapable of doing so. However, the SDPOA gives the person creating the SDPOA the option to choose one of the following: (1) “This power of attorney is not affected by subsequent disability or incapacity of the principal” or (2) This power of attorney becomes effective on the disability or incapacity of the principal.”

Option No. 1 (in my opinion, inartfully stated) means that the SDPOA goes into effect immediately, without requiring that a physician designate in writing that the person creating it is disabled or incapacitated. The second option means that the SDPOA does not give the agent the power to act until after the principal has been declared disabled or incapacitated in a writing by a physician.

Whether Option 1 with immediate effectiveness or Option 2 with effectiveness delayed until a doctor establishes disability depends upon the particular circumstances of the principal and the agent being named. With either option, it is imperative that the agent named is a person the principal trusts completely to handle his or her affairs in the principal’s best interest.

Given a trustworthy agent, in most instances, Option 1 is often preferable for these practical reasons:

Many, if not most, doctors do not like making the assessment that a person is disabled or incapable of handling his or her affairs;
Even when a doctor is willing, the doctor may not be the best person to make that decision, given that often an individual’s decision-making capability can vary from day to day; and
Even if the doctor is willing and can make a valid assessment, often action needs to be taken sooner than is possible when the assessment must be secured beforehand.

Even when the SDPOA is made effective at once, the principal can still continue to handle their own affairs until they themselves determine they no longer can do so.

The 2017 version of SDPOAs gives the principal the option of designating whether the agent will receive reasonable compensation for performing the duties required under the SDPOA or will merely be entitled to reimbursement for any expenses incurred in performing those duties.

In my experience, most principals name a spouse or another person who will ultimately inherit from them and choose to have that agent perform without compensation.

The SDPOA form enacted in 2017, makes clear that, unless the principal answers “yes” to specific designations, the agent will not have the authority to: (1) create, amend, revoke or terminate a trust the principal has established during life; (2) create or revise rights of survivorship; (3) create a beneficiary designation; or (4) authorize another person to exercise the authority given under this power of attorney.

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Statutory durable powers a tool to avoid guardianship

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It's hard to think about, but frail older women in nursing homes get sexually abused too

December 10, 2018, 11:00 pm

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We don't often think of older women being victims of sexual assault, but such assaults occur in many settings and circumstances, including in nursing homes. Our research, published this week in the journal Legal Medicine, analysed 28 forensic medical examinations of female nursing home residents who had allegedly been victims of sexual assault in Victoria over a 15-year period.

The cases were examined by Clinical Forensic Medicine – a division of the Victorian Institute of Forensic Medicine – between January 1, 2000 and December 31, 2015.

The majority of the alleged victims had some form of cognitive or physical impairment. All 14 perpetrators who were reported were male, half of whom were staff and half other residents. The majority of case reports didn't indicate whether the alleged victim had received treatment for the assault.

The most frequent alleged sexual contact was vaginal contact or penetration. Injuries weren't reported for every case. Where present, they consisted of bruising, skin tears, redness and swelling.

The physical examination was often limited because of the cognitive status (in 38%) of the individuals, physical issues (in 31%), lack of cooperation (23%), and poor examination conditions (23%). Data on alleged victims' behaviour was commonly missing.

These information gaps highlight the difficulty of examination which is essential to a detailed investigation. A better understanding of the context and setting of the assault, which is usually available when younger women are victims, is essential to inform prevention efforts.

Eliminating sexual assault in nursing homes is a major challenge which starts with acknowledging it exists and recognising the scale of this abuse.

Much higher than we think

Sexual assault is considered the most hidden, as well as least acknowledged and reported, form of elder abuse. This makes it difficult to accurately estimate its prevalence.

Prior to 2007, it was estimated there were around 20,000 unreported cases of elder abuse, neglect and exploitation in Victoria. Between 2009-10 and 2014-2015 the published number of sexual assaults among older people rose from around 280 to 430 reports nationally (information about each jurisdiction was not available).

In 2015–2016 The Australian Department of Health was notified of 396 reports of alleged or suspected unlawful sexual contact of residents in nursing homes in Australia.

Based on these statistics, we expected Victoria would have 80-120 sexual assaults of residents reported in nursing homes per year (equating to approximately 1,200 assaults during the study period). The 28 cases reported to the forensic investigation team over a 15 year period suggests under-recognition and under-reporting.

Nursing home residents are particularly vulnerable to sexual assault due to their dependency on caregivers, health problems, and the co-housing of residents, sometimes with potentially dangerous older individuals with sexual assault backgrounds.

Negative stereotypes such as that older people aren't sexual beings, their greater dependency on others, potential divided loyalty to staff members or residents are unique barriers to reporting, detecting, and preventing sexual assault in nursing homes. Despite severe health consequences, efforts to prevent and address elder abuse remain inadequate.

In the majority of cases we examined, signs of general or genital injury were not found. Further, post-assault victim responses, such as agitation, distress and confusion may mirror symptoms of cognitive impairment. This can create difficulties for nursing home staff in distinguishing between the usual behaviour or a response to trauma, such as sexual assault.

Also, nursing home victims of sexual assault tend to be ignored by staff who often don't believe the accusations. Although we could not determine who or what prompted reporting, what is known is that sexual assaults are unlikely to have a witness, though witnesses appear to be crucial to ensure successful prosecution.

Sexual assault, in any setting or age group, is one of the most difficult crimes to prosecute due to the required elements of intent and lack of consent. But this is made all the more complicated when it comes to nursing home residents.

Awareness is crucial

Staff must be aware of the existence of sexual assault in nursing homes. It is their duty as care providers to report alleged or suspected sexual assault in a timely manner. More education, training and research is needed to address the knowledge gaps around incidence, levels of reporting, nature of investigations, responses required to better assist the victim, and the interventions needed to prevent sexual assault.

Without a clear understanding of the alleged victim and incident characteristics, we will struggle to combat sexual assaults in nursing homes. There is an urgent need to better use the existing data held by the the Department of Health to understand the full extent of sexual assault in nursing homes. The Royal Commission is an opportunity to consider the development of tailored policies, staff training and legislation.

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It's hard to think about, but frail older women in nursing homes get sexually abused too

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Police: VT man stole more than $48K from elderly woman

December 11, 2018, 10:00 pm

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A Vermont man has been charged with stealing more than $48,000 from an elderly woman over a four-year period after gaining power of attorney of her affairs, police say.

Eric Brigham, 52, of Williamstown, was charged with one count of financial exploitation, according to Newport police.

Police say on Oct. 29, a private investigator working for an 84-year-old woman notified police that her relative, Brigham, had been taking advantage of her by abusing his power of attorney.

An investigation was launched and police discovered that Brigham had been given power of attorney of the woman’s affairs in June 2014, and in December 2014, Brigham allegedly began writing checks out of the victim’s account without her permission.

In February 2015, Brigham obtained checks that had both his name and the victim’s name on them under her account, according to police.

An investigation revealed Brigham used checks and a debit card to withdraw thousands of dollars in funds from the victim’s bank accounts on a regular basis over four years.

With the money, he allegedly purchased an all-terrain vehicle trailer, an enclosed trailer, custom picture frames, furniture, and had work done on his Audi sedan, according to police.

In numerous other instances, police say he wrote out checks to himself for cash or wrote them out under the victim’s name, but rarely gave the victim any of her own money and rarely visited her in the nursing home.

It was also determined that after the victim had moved from her home into the nursing home, Brigham either sold or threw out nearly all of her personal belongings and possessions, rather than putting them in storage and kept the money for himself, according to police.

In total, police say Brigham is believed to have stolen $48,149.11 from the victim and left her with several delinquent credit card bills and more than $20,000 in debt to her nursing home.

Brigham is scheduled to appear in Orleans District Court on Jan. 15.

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Police: VT man stole more than $48K from elderly woman