Thursday, February 27, 2014

NPR Broadcasts "Managing Your Elderly Parents' Finances"


On Thursday morning (11:06 AM to Noon), February 27, 2014, The Diane Rehm Show, as broadcast from WAMU through the National Public Radio network, focused on the topic Managing Your Elderly Parents' Finances, with guest host Elise Labott.

The highly-qualified and well-spoken guests were:
    Sally Hurme, Project Advisor, Education and Outreach, at AARP
    Naomi Karp, Senior Policy Analyst, Office for Older Americans, Consumer Financial Protection Bureau
    Elizabeth Loewy, Chief, Elder Abuse Unit, Special Victims/Special Prosecutions Bureau, New York County District Attorney's Office
This is the overview of the program topic:
Millions of elderly Americans suffer from dementia, Alzheimer’s disease and other disabilities that make them unable to make decisions about their finances. 

About a quarter of all people over the age of 65 rely on relatives, often their children, for help managing their money and assets. But the task of caring for elderly parents and managing their bills and property can be overwhelming and time consuming. It can also be filled with ethical and legal pitfalls and a source of family conflict.
Two of these guests were quoted recently in an article by Ann Carrns, in The New York Times published October 30, 2013, entitled New Guidelines Aim to Help Financial Caregivers. So I knew that these guests were experts.

As I listened, I heard accurate information and sound advice, without one error or overstatement. The discussion covered such concerns as:
  • Need for reliable and appropriate assistance for elderly relatives by family members who care
  • Mental capacity and incapacity 
  • Changeability of circumstances faced by elderly relatives
  • Nature of services involving banks, businesses, investments, bills, living expenses, and medical costs
  • Accountability by, and communications among, persons providing assistance or care
  • Fiduciary responsibilities under a power of attorney or trust 
  • Conflicts of interest of a family member with an elderly person
  • Potentials for personal and financial abuse of a vulnerable adult 
  • Roles of family members and assistance by community, government, or church organizations
  • Planning processes -- when and how
  • Helpful advisors, including attorneys, accountants, bankers, and special service organizations
  • Devices for financial management, including direct deposits and payments, online banking, joint bank accounts (including problems with survivorship designations, versus "convenience" accounts), Social Security representative payees, agent appointments under a power of attorney document, voluntary trust arrangements, and court-ordered guardianship
  • Scams, such as those involving mortgages, lottery awards, and telemarketing
  • Reports of suspected abuse to local law enforcement, abuse hotlines, or special elder abuse investigation units  
During the program, more than twenty comments from listeners accumulated [increased to 37 comments as of March 8, 2014] that shared personal experiences and raised questions.

The program's webpage provided links to accurate, helpful resources:

Thursday, January 16, 2014

Enact Mandatory Financial Elder Abuse Reporting in PA

On December 11, 2013, Professor Katherine C. Pearson, of Penn State Law (The Dickinson School of Law, Carlisle, PA Campus), posted a four-page article entitled Law Financial Abuse and Exploitation in Pennsylvania: The Importance of Early Response and Clearer Lines for Recovery, available as a PDF download on the Social Science Resource Network.

On January 15, 2014, Professor Gerry Beyer referenced the article on the Wills, Trusts & Estates Prof Blog in a posting entitled Article on Financial Abuse in Pennsylvania.  He included the SSRN abstract of the article:
Protection of older adults from exploitation requires a careful balance. On the one hand is the concern for individual autonomy; on the other hand, there is increasing recognition of the potential for vulnerability to influence, manipulation or outright fraud. 
Pennsylvania is considering amendment of its Older Adult Protective Services Act. Professor Pearson's written testimony for hearings in December 2013 addresses measures to encourage early reporting of suspicions of abuse by banks and other financial institutions. 
Further, to assist in early recovery, Professor Pearson recommends adoption of a private right of action under the Act to provide statutory grounds for recovery of money or other property, or appropriate injunctive relief.
Katherine's suggestions are set forth on page two of her written testimony, which was presented during a hearing held by the Aging and Older Adult Services Committee, of the Pennsylvania House of Representatives, in Harrisburg, PA, on December 11, 2013.
  1. That to facilitate early reporting, Pennsylvania take additional measures to create an environment where banks and other financial institutions are more likely to report suspicions of financial abuse, and 
  2. That to facilitate early recovery, Pennsylvania create a private right of action under the Older Adult Protective Services Act (OAPSA), permitting the victim of exploitation (or the victim's legal representative) to allege statutory grounds against the perpetrator in order to seek recovery of money or other property, or other appropriate injunctive relief.
Her first recommendation mirrors one that I have advocated since 2007, and again referred last year to the Pennsylvania Bankers Association for consideration.  Seven years ago, California first mandated financial institutions to report suspected financial abuse of an elder or a dependent adult.

James P. Bessolo, a senior attorney with Northern Trust, N.A., summarized and then explained in great detail (with extensive citations) California's then-new law in his article entitled Mandatory Reporting Requirements for Financial Elder Abuse (October, 2007; Vol. 30, No. 7), published in the Los Angeles Lawyer.
In an effort to combat financial abuse, California law requires individuals in certain positions, who are known as mandated reporters, to report incidents that reasonably appear to constitute elder or dependent adult abuse.  The reports are generally made to the local Adult Protective Services (APS) agency or to local law enforcement.
Effective January 1, 2007, officers and employees of financial institutions became mandated reporters of suspected financial abuse of an elder or dependent adult. 
The [California] Elder Abuse and Dependent Adult Civil Protection Act defines "financial abuse" as occurring when a person or entity takes, hides, appropriates, or retains real or personal property of an elder or dependent adult for wrongful use and/or with the intent to defraud, or assists in doing so. * * *
I recall reading articles at that time about the initial opposition to that proposal, and the subsequent concerns during the phase-in period from financial institutions after Governor Arnold Schwarzenegger signed the legislation on August 29, 2005.  

Under that expansion of California's Elder Abuse and Dependent Adult Civil Protection Act, originally enacted in 1982, California banks and other financial institutions would become liable if they would fail to report suspicions of financial elder abuse, beginning January 1, 2007. For example, see: Financial Institutions Need to Know Elderly Customers (January 2006), by Steven Wasserman and Sunny Shapiro.

Since then, the California experience seems to have worked.  Indeed, the mandatory reporting was streamlined in 2011 to enable quicker reporting through the Internet.  See: Regulatory Compliance Bulletin: Elder Abuse Law Extended; Internet Reporting Now Permitted, posted on November 2, 2011, by the California Bankers Association.  It stated, with citations, the modifications to the system established in 2007 affecting banks:
Pursuant to a new California bill SB 718, mandated reporters of elder or dependent adult abuse, including banks, may submit mandatory reports through a confidential Internet reporting tool if the county or long-term care ombudsman implements such a system. * * *
If the initial report is made through this tool to APS or ombudsman, as applicable, rather than by telephone then the reporter is not required to follow up with a written report. This would represent a significant reduction in the reporting burden on all reporters. * * *
Our neighbor state, Maryland, joined the movement by its new mandatory reporting law, which took effect in October, 2012, as reported by Eileen Ambrose in The Baltimore Sun in her article, New Md. law aims to halt financial abuse of the elderly (05/14/12).
Maryland banks and credit unions are likely to be among the first to notice that an elderly customer is being financially exploited by a con artist or an unscrupulous relative.

So it makes sense that these institutions take part in an effort to protect older Marylanders from being ripped off. Thanks to a new state law, they will.

Starting in October, banks and credit unions here will be required to report suspected financial exploitation of Marylanders age 65 and up. They must convey their suspicions within 24 hours by phone to Adult Protective Services — part of the state's Department of Human Resources — or law enforcement and must follow up in writing. Financial institutions that fail to do so will face a penalty of as much as $5,000.

Financial institutions usually aren't keen on more regulation. But many are on board in this case, saying the mandate will raise awareness of a serious problem. * * *

The articles notes:
Many other states already have such a reporting mandate, and it's about time Maryland joined them. * * *
Around 20 states require the reporting of such cases, including California since 2007. By the end of 2010, California banks reported that more than 26,000 cases of potential elder abuse had been turned over to authorities.
The Maryland Legislature adopted the House bill and the companion Senate bill, unanimously.

I support both of Katherine's recommendations.  

However, I believe that the first priority is for Pennsylvania to join the states that have enacted statutes to mandate potential financial elder abuse reporting by financial institutions.  

Such a law in Pennsylvania could be crafted as an amendment to the existing Older Adult Protective Services Act using statutory models from those other states.  The effect, after implementation, would be to uncover much more financial elder abuse, earlier.

Such mandatory reporting by banks and financial institutions is workable, would have a substantial and immediate effect to reduce financial elder abuse, and therefore should be pursued by legislators in Pennsylvania.

Friday, September 06, 2013

PA Small Estate & Deposit Payment Thresholds Increased

The Pennsylvania Probate, Estates & Fiduciaries Code (Title 20 of PA Consolidated Statutes) was amended in minor, but helpful, ways by Act 35 of 2013, which became effective on August 31, 2013.

The changes in affected sections of Title 20 are noted in the adopted form of House Bill 513, Printer's No. 2169, of the 2013-2014 Legislative SessionHB 513's History indicates it was adopted by the Legislature on June 29, 2013, and signed by the Governor on July 2, 2013.  It became effective 60 days thereafter.

Under long-standing statutory law regarding "Dispositions Independent of Letters", pursuant to 20 Pa. C.S. § 3102 ("Settlement of small estates upon petition"), a "small estate" -- defined as one with assets less than $25,000 and no real estate -- could be settled by a customized petition presented to the Orphans' Court Division, as an alternative to a formal probate procedure.

Section 3102 provides, in its first sentence, as follows:
When any person dies domiciled in the Commonwealth owning property (exclusive of real estate and of property payable under section 3101 (relating to payments to family and funeral directors), but including personal property claimed as the family exemption) of a gross value not exceeding [$$$ = AMOUNT], the orphans' court division of the county wherein the decedent was domiciled at the time of his death, upon petition of any party in interest, in its discretion, with or without appraisement, and with such notice as the court shall direct, and whether or not letters have been issued or a will probated, may direct distribution of the property (including property not paid under section 3101) to the parties entitled thereto.
The prior law had stated an AMOUNT of $25,000.  The amendment increased the AMOUNT to $50,000, but made no other changes to that Section.

Other, more frequently used dispositions of a decedent's assets of a limited value without a formal probate were provided under 20 Pa. C.S. § 3101  ("Payments to family and funeral directors").  That Section continues to provide for payments directly to certain persons or organizations regarding five different classes of assets up to certain amounts.

Act 35 amended the maximum amounts for two of the five classes of assets, as set forth in subsections (b) and (c) only.
  • (a)  Wages, salary or employee benefits (remains at not more than $5,000)
  • (b)  Deposit account (previously not more than $3,500, which was increased to $10,000)
  • (c)  Patient's care account (previously not more than $4,000, which was increased to $10,000)
  • (d)  Life insurance payable to estate (remains at not more than $11,000)
  • (e)  Unclaimed property (remains at not more than $11,000)
In two further helpful tweaks to subsection (b), Act 35 clarified that a "credit union" is included as a financial institution holding a "deposit account" and authorized to make such payments directly, without proof of an estate administration.  It also amended the law to be directive, as opposed to optional, for a financial institution to make such payments upon proper application.  The word "may" was replaced with "shall".

Section 3102 (b) now provides:
Deposit account.--Any bank, savings association, savings and loan association, building and loan association, credit union or other savings organization, at any time after the death of a depositor, member or certificate holder, shall pay the amount on deposit or represented by the certificate, when the total standing to the credit of the decedent in that institution does not exceed $10,000, to the spouse, any child, the father or mother or any sister or brother (preference being given in the order named) of the deceased depositor, member or certificate holder, provided that a receipted funeral bill or an affidavit, executed by a licensed funeral director which sets forth that satisfactory arrangements for payment of funeral services have been made, is presented. Any bank, association, credit union or other savings organization making such a payment shall be released to the same extent as if payment had been made to a duly appointed personal representative of the decedent and it shall not be required to see to the application thereof. Any person to whom payment is made shall be answerable therefor to anyone prejudiced by an improper distribution.
Such amendments are helpful to many folks facing an immediate need for money for death-related expenses, or simple collection of stray or remaining assets in a decedent's name, such as a solely-held financial account, a small insurance policy, periodic final wages and benefits, or a balance remaining in a patient's care facility account.  

Likely, these changes will not affect old or stale accounts, due to periodic sweep collections by the Commonwealth since 1998 of inactive assets pursuant to the Unclaimed Property Law and Regulations.  However, subsection (e) of Section 3102 would permit recovery of such collected funds due to a decedent, if less than $11,000.

These sections do not avoid accountability or even tax reporting upon a death, but provide an expedited way for collection and application of funds without formal probate.

Monday, August 26, 2013

Joint State's Amazing Record and Report

On August 1, 2013, the Pennsylvania Joint State Government Commission posted a Report, dated August, 2013 (PDF, 4.7 MB), entitled The Probate, Estates and Fiduciaries Code and Orphans' Court Matters: Legislation Recommended by the Advisory Committee on Decedents' Estates Laws, which encapsulates -- in 291 pages of history, descriptions, summaries, lists, and tables -- the amazing impact of that organization upon probate, estate, fiduciary, and related statutes, and upon Orphans' Court matters generally, since 1945 in this Commonwealth.

The Joint State Government Commission itself was established on July 1, 1937, to serve as "the primary and central non-partisan, bicameral research and policy development agency for the General Assembly of Pennsylvania."  

Its first appointed advisory committee -- the Advisory Committee on Decedents Estates Laws. (ACDEL) -- was established in 1945.  Since then, the "Advisory Committee has generated more than 40 reports that have served as the basis for legislation introduced during numerous legislative sessions of the General Assembly", which have improved Pennsylvania law in Title 20 of the Pennsylvania Consolidated Statutes (the Probate, Estates and Fiduciaries Code -- "PEF Code") and related statutes.  

The Report provides not only a history of ACDEL, but also a compiled reference of its work products, developed by various JSGC ad hoc study groups, legislative resolution task forces, and the standing ACDEL.  Such groups have analyzed, drafted, reviewed, revised, and recommended statutory law in the Commonwealth for the past sixty-eight years.
This report first recounts the purpose of 1945 Senate Resolution No. 46, which authorized the Joint State Government Commission to form a legislative task force and advisory committee to review decedents’ estates laws.
This is the Report's Summary of its contents:
The section titled The Task Force and Advisory Committee on Decedents’ Estates Laws also discusses the membership and leadership of the Task Force and Advisory Committee and outlines the process used to develop statutory recommendations.  Finally, that section summarizes the projects of the Advisory Committee from 1945 to 1972, the codification of the PEF Code (including the original chapter organization of the PEF Code), and proposed legislation since 1972.

The next section, Advisory Committee Reports, lists all 43 published reports of the Advisory Committee since its creation.  Numerous reports published after the 1972 codification contain proposed omnibus amendments to the PEF Code and, in some instances, to other titles of the Pennsylvania Consolidated Statutes.  Other reports focus on one particular topic, such as guardianships, powers of attorney, or trusts.

The list of Advisory Committee reports is followed by Proposed Legislation Organized by Advisory Committee Report.  This section details the contents of each report and provides the specific section and subsection that is the subject of the proposed amendment or repeal or that is newly proposed.  The reports are listed in reverse chronological order.

The next section, Proposed Legislation Organized by Statutory Section, comprehensively lists each specific section and subsection to which the Advisory Committee has made a recommendation.  It then summarizes the nature of the recommendation (proposed amendment, repeal or addition) and the report containing the recommendation.  Of note is that, in a number of instances, the Advisory Committee has revisited the same provision over the years, and several reports capture the multiple or recurring recommendations.

The section that then follows is Proposed Legislation Organized by Legislative Session.  Listed here are each bill introduced that is based on the recommendations of the Advisory Committee, along with the relevant provisions included in the bill and a summary of the disposition of the bill.  If the bill was enacted, the act number and enactment date is provided.  In two instances, a bill containing the Advisory Committee’s recommendations was vetoed by the Governor, despite having passed both chambers of the General Assembly unanimously.

The next section of this report provides a detailed table of contents for the PEF Code, as it was enacted in 1972.

Finally, this report contains a list of the Advisory Committee Chairs and Advisory Committee members, with dates of service and county of practice.
The Report itself is impressive in its sweep and detail.  But the story of passion and perseverance that it implies -- if you can read between the lines (because this is not pulp fiction) -- is even more impressive.

Consider that, since 1945, only 110 volunteer experts spread over 68 years -- many devoted until only death ceased their efforts -- donated their time, expertise, experiences, intellect, skills, and visions to suggest statutory frameworks that still evolve today.  Presently, the ACDEL has 34 members appointed by the Legislature, in roles either as lawyers or judges, serving pro bono.

Their work addressed the most difficult issues in human experience and the most fundamental laws affecting everyone -- disability, incapacity, death, reproductive technology, surrogate health care management, fiduciary administrations, and end-of-life decisions.


The most recent JSGC-ACDEL comprehensive report was issued in October, 2012, regarding reform of Pennsylvania guardianship law, contained in Chapter 55 of the PEF Code. See: Guardianship Law: Proposed Amendments to the Probate, Estates and Fiduciaries Code, which presently is embodied in Senate Bill 117 of the 2012-13 Session, as reviewed in a Legislative Analysis, dated February 12, 2013.

If that is not enough to impress you, check out the companion report also posted on August 1st -- Domestic Relations Law: Legislation Recommended by the Advisory Committee on Domestic Relations Law 1993-2010 (PDF, 218 pages).

The current supervising Legislative members of JSGC are listed.  All volunteer members of the ACDEL since 1945 were named.  The current supporting staff are listed, but past staff are not.  All were devoted to their craft.

JSGC-ACDEL produces studies and makes recommendations that are non-political, independent, expert, comprehensive, and reliable, in a cost-effective process. In this time of reduced funding and personnel, this organization is beyond special -- it is amazing.

The Joint State Government Commission is a one-of-a-kind blessing to this Commonwealth that, hopefully, will continue its work long into the future.

Wednesday, August 21, 2013

"Older & Wiser" Presentations Planned



After laying off for the Summer (and much of the Spring) as a blogger, I am resuming, coincident with my teaching of "Elder Law & Practice" at Widener University School of Law, beginning this evening.   This is my welcome message to the students.

It is also an announcement about a pro bono project undertaken by the Dauphin County Bar Association, using the template of the Older & Wiser® Program.

This program, conceived and implemented in 2003 by the Neighborhood Legal Services Association, is intended "to deliver important information on legal issues affecting older adults, their care givers and their families."  As a national template, it is "a free program set up in a seminar style where local state legislators and volunteer attorneys give information on these matters of special importance."
The materials for each Older & Wiser® seminar have been developed by Managing Attorney Joseph M. Olimpi and private attorney volunteers.  Each Older & Wiser® seminar is presented by a pro bono attorney who provides an informative overview of a particular legal issue, followed by a question and answer period. 
Current session topics include:
  •     Protection through Powers of Attorney and Living Wills
  •     Dealing Effectively with a Healthcare Facility
  •     Guarding Against Senior Fraud
  •     Understanding Retirement Benefits
  •     Learning about Last Wills and Living Trusts
  •     Avoiding Missteps in Medicaid
  •     Predatory Lending and the Elderly
At each presentation, handouts and brochures are available to take home. Appropriate referral information is given if attendees are in need of direct legal services. For those attending who are income eligible, there are reduced fee and free of charge services available to meet your needs.

The goal of the Older & Wiser® Program is to provide information that will assist older adults and their families in making wise decisions that protect them and the things they own. Everyone who is interested is welcome, regardless of age, and the seminars are offered free of charge.

In an announcement to its membership on August 21, 2013, describing "another pro bono opportunity for Dauphin County Bar Association members", implementation in Central Pennsylvania was described:
[W]e are working with MidPenn Legal Services to make Older & Wiser® presentations in the community (see dates below).
The Older & Wiser® Program is a way to deliver important information on legal issues affecting older adults, their care givers and their families. It is a free program set up in a seminar style where local elected officials and volunteer attorneys give information on these matters of special importance. 
Legal services and private attorney volunteers have prepared all the materials for each Older & Wiser® seminar (a Power Point presentation, handouts and brochures) for you.   Each Older & Wiser® Power Point Presentation is presented by a pro bono attorney who provides an informative overview of a particular legal issue, followed by a question and answer period.  
At each seminar, the audience receives handouts to take home. * * *
In particular, Representative Sheryl M. Delozier is hosting three presentations using the "Older & Wiser®” and we are looking for pro bono attorneys to present on:
  • Thursday, September 12 from 9:00 am – 10:30 am – Protection through Powers of Attorney and Living Wills
                Bethany Vlg East Comm. Rm (766-0279)
                325 Wesley Drive
                Mechanicsburg, PA 17055
  • Thursday, September 26 from 9:00 am – 10:30 am.  – Understanding Retirement Benefits
                Essex House (730-7302)
                20 North 12th Street
                Lemoyne, PA 17043
  • Thursday, October 10 from 9:00 am – 10:30 am – Dealing Effectively with a Healthcare Facility
                Simpson Public Library (766-0171)
                16 North Walnut Street
                Mechanicsburg, PA 17055
  • Thursday, October 31 from 9:00 am – 10:30 am – Learning about Last Wills and Living Trusts
                The Woods at Cedar Run (737-3373)
                824 Lisburn Road
                Camp Hill, PA 17011
Attorneys interested in presenting can contact  Sandy Ballard, Esq., Public Services Coordinator, Dauphin County Bar Association, 213 North Front Street, Harrisburg, PA 17101 (Ofc: 717-232-7536; Fax: 717-234-4582; Email: sandy@dcba-pa.org.

Members of the public -- Look for such programs in your area, or plan on attending those listed above.

Thursday, April 18, 2013

PA Supreme Court Appoints New Elder Law Task Force



On April 18, 2013, in a posted press release entitled Supreme Court’s Elder Law Task Force Will Tackle Growing Abuses to Older Pennsylvanians, the Pennsylvania Supreme Court announced creation of a new Elder Law Task ForceThe initial meeting of the group was held on April 16 and 17, 2013, at the Pennsylvania Judicial Center, in Harrisburg, PA.

The Press Release announced that "The Supreme Court of Pennsylvania has formed an Elder Law Task Force, chaired by Justice Debra Todd, to study the growing problems involved in guardianship, abuse and neglect, and access to justice. The task force has been charged by Chief Justice of Pennsylvania Ronald D. Castille with recommending solutions that include court rules, legislation, education and best practices."
The task force is made up of 38 elder law experts, including judges, lawyers and social workers.

The task force will have three subcommittees, one devoted to appointment and qualifications of guardians and attorneys, a second on guardianship monitoring and data collection, and a third on elder abuse and powers of attorney.  The work of the group will take approximately one year.  

“As a society, we have increased concentration on child abuse, but the issue of elder abuse has not kept pace,” said Justice Todd.
“This task force is the judiciary’s attempt to study the issues under its purview and make adjustments now, before the numbers of older Pennsylvanians and the commensurate jump in abuse, occurs." * * *
"The U.S. Administration of Aging’s National Center on Elder Abuse estimates that for every one case of elder abuse reported, five more go unreported. This is shameful, and we need to do better.” * * *
The appointed members of the Task Force met in Harrisburg on Tuesday, April 16th and Wednesday, April 17th, for introductions, initiation, presentations, and  discussions, and then for organizational activities within the three subcommittees.  During a break, a group photo was taken (reposted above).  I stand in the back row, behind the pretty lady in the red dress, Prof. Katherine Pearson, of Penn State / Dickinson School of Law.

Simultaneously with the announcement, the Administrative Office of Pennsylvania Courts posted "a variety of resources" on the UJS website, including high-definition video footage of an interview with Justice Debra Todd, the convener and Chair of the Task Force  (the first time such form of media content was posted on that website), an audio clip of the interview, and a graphic, all of which can be used or distributed freely.

Great opportunities for change -- some in study and development for five years or more -- are now presented by the Legislative branch and within the Judicial system in Pennsylvania, even as programs operated by the Executive branch are refined.  These proposals and changes would affect positively the Commonwealth's senior and disabled populations: 
  • Other proposed and pending legislative measures on similar subjects, but with different approaches.
I applaud and thank the Pennsylvania Supreme Court Justices, particularly the Chief Justice and Justice Debra Todd, for this initiative.