Friday, June 15, 2012

Today is WEAAD

Today, Friday, June 15, 2012, is the seventh annual World Elder Abuse Awareness Day (WEAAD).

The goal of WEAAD is to increase awareness of elder abuse throughout the world and bring attention for the need for prevention and action. Every year, millions of older adults are abused, neglected or exploited, with many cases never being reported. 

WEAAD also supports the United Nations International Plan of Action, which identifies elder abuse as a public health and human rights issue.

Yesterday, the White House Symposium on Elder Abuse was held in recognition of WEAAD. The daylong symposium featured national experts and government officials in presentations and panel discussions that were broadcast live on the White House website from 9-11:30 AM and 1:30-4:00 PM.

In the afternoon, some Pennsylvania attendees commented on the widespread and vicious nature of financial elder abuse, and their efforts to combat it in Eastern Pennsylvania.

On the National Commission on Elder Abuse's Take a Stand” webpage, you can learn about other WEAAD events occurring across the country, searchable  by state.

Today, in Pennsylvania, in recognition of WEAAD, two organizations from Eastern Pennsylvania -- CARIE and the SeniorLAW Center, of Philadelphia -- hold their Elder Justice: Protection and Advocacy Technical Assistance Regional Conference in State College at The Penn Stater Conference Center.
The [Conference] will provide an enhanced understanding of Elder Justice in Pennsylvania. 
The Conference will also provide an opportunity for victim service providers and allied professionals from the surrounding counties to enhance their skills and network, increase collaboration, share best practices, and learn about emerging victim advocacy trends. 
David R. Hoffman, Esquire will deliver the keynote speech presenting on the State Perspectives of the Adult Protective Services System. 
The remainder of the agenda will include an Elder Abuse Task Force presentation, a leadership panel, direct services panel and break-out exercises involving a case study for each group to problem solve by learning about and utilizing the services of multiple agencies in order to build networks and strengthen victim services in each community. * * *
The professional groups invited to the Conference in State College include: Community Social Services providers (non-aging), Aging Services Providers, Adult Protective Services, Domestic Violence Service Providers, Medical/health Professionals, Faith Community, Law enforcement, Community Legal providers/network, Other Criminal Justice Professionals, Local Government, and Community Leaders. 

You can view or download Mr. Hoffman's 16-slide PowerPoint presentation, posted by CARIE.  His overview provides statistics,  definitions, situations, approaches, resources, and needs.

You may also be interested to view the elder abuse resources posted by the Center for Elders and the Courts, including its Elder Abuse Curriculum for State Judicial Educators and its new Elder Abuse Toolkit, which was promised to be available today, in recognition of WEAAD.

Thursday, June 14, 2012

Lawyer's "Own Story" -- Caring for an Aged Parent

Attorney Mark Mateya, of Carlisle (Cumberland County), PA, writes a simple personal blog, hosted on Blogger, entitled Taking Care of Your Parents: My Own Story.

I've known Mark probably for fifteen years.  I respect him as a lawyer.  I did not know, however, that last year in May, he stepped out of that professional role and began posting his personal experiences on a blog about his family, and, specifically, about his elderly mother living alone.  

He invited readers:  "Please follow our journey as my family and I make plans for my aging mother."

His very first entry, on May 11, 2011, set the situation and noted challenges:
We just celebrated mother’s day in our country. Taking care of Mom this year, while she is still at home, is made a little easier by the loving support she enjoys. Mom is in her eighties, and her three sons, of whom I am the baby, give her as much support as possible. Two of us are farther afield, so we each take a little of the financial burden on us to try to compensate for the distance we feel from her. * * *
Five days later, he clarified his blog's purpose:
In this blog, I hope to explore my own adventure, not as much as an estate planning attorney, but more as a professional who is dealing with these considerations on a personal level. * * *
Mark posted about twenty entries during the past year on his Blog.  His entries read like a personal diary.  I admire his openness, conviction, humor, and emotion.  He writes about medical ailments, risks in a home, reduced self-care, prideful forgetfulness, limited mobility, confused communications, role reversals, financial accountability, potentials for abuse, and other concerns that arise naturally in the still-mutual lives of his widowed mid-eighties mother, and of himself as her devoted son.

I recall similar concerns in our family circumstances twenty years ago, which had extended for years before.  Those circumstances defined what I did and who I was, then; and those experiences formed what I do and who I am, now.

So I know that we read less of a travelogue, and more of a personal development memoir.  Mark may not yet recognize that yet. Also, he has not yet encountered the most turbulent times, including severe decline, death, mourning, and recovery.  Those events may be too difficult to relate when arising later.  Whether publicly or privately, I encourage Mark to write his thoughts during those times too.

Mark hopes that others will read his accounts, and find support in their own situations.  He is trained and disciplined, and maintains a good heart.  He faces family challenges not easily quantified or solved during a loved one's aging and decline.  Thus, he is not too different from me, or from so many of us.

On the professional side, Mark also posts onto a law firm blog simply entitled Mateya Law Firm.  There, he focuses upon powers of attorney in Pennsylvania.  He understands that abuse that can, and often does, occur under a power of attorney.  Where motives are not pure and selfless, where thinking is not clear or actions not accountable, where advocacy refutes cooperation and consensus, and where change is fought not planned, a POA can become a weapon of destruction.

How I wish that all individual holders of a power of attorney for an elderly parent would have the character and caring displayed in Mark's blog. 

Pick just such a family member when you execute your power of attorney.

Monday, June 11, 2012

Filial Support of Indigent Parents in PA

On Tuesday, June 12, 2012, WITF-FM's Radio Smart Talk will host a discussion about the legal concept of "filial support" and its possible consequences for Pennsylvania's sons and daughters with aged parents who require care, but who can't pay.

"Filial" is defined by the Merriam-Webster dictionary as 1: of, relating to, or befitting a son or daughter, or 2: having or assuming the relation of a child or offspring.  

However, the concept of "benefit" to a son or daughter becomes reversed, if you add a duty of "support" under a state statute.  The result?  Adult children (if not abandoned in their youth) owe an ongoing duty of support to parents who have become indigent; and they must defend against claims by their parent's care-giving creditors in court.

On May 7, 2012, a three-Judge Pennsylvania Superior Court panel issued an opinion and order in Healthcare Retirement Corporation of America v. Pittas (PDF, 10 pages).  The ruling upheld a judgment rendered by a Lehigh County, PA trial court, against a son for his mother's unpaid debt of $92,943.41, owed to a institution for her medical and residential care.

The charges resulted from treatment needed after the mother was injured in a car accident.  The care extended six months before she withdrew from the facility, and then left the country.  The case at trial was decided while an application for Medicaid coverage was pending.

The Court's opinion noted the essential facts:
On or about September 24, 2007, after completing rehabilitation for injuries sustained in a car accident, Appellant’s mother was transferred to an HCR facility for skilled nursing care and treatment.  Appellant’s mother resided in the facility and was treated by HCR until March of 2008.  In March of 2008 Appellant’s mother withdrew from the HCR facility and relocated to Greece.

A large portion of the bills incurred by Appellant’s mother due and owing to HCR went unpaid.  As a result, on or about May 12, 2008, HCR instituted a filial support action against Appellant.  Pursuant to 23 Pa.C.S.A. § 4603, entitled “Relatives’ liability,” HCR sought to hold Appellant liable for the outstanding debt incurred as a result of his mother’s treatment and care.

The parties submitted the case to arbitration, whereupon a three member arbitration panel found in favor of Appellant.  HCR appealed the arbitration award to the trial court.  The trial court held a three-day non-jury trial, after which it entered a verdict in favor of HCR in the amount of $92,943.41. * * *
The Court referenced portions of the applicable statute, 23 Pa.C.S.A. § 4603 (unofficial version posted online by OneCLE), which provides:
(a) Liability. --
    (1) Except as set forth in paragraph (2), all of the following individuals have the responsibility to care for and maintain or financially assist an indigent person, regardless of whether the indigent person is a public charge:   
        (i) The spouse of the indigent person.
        (ii) A child of the indigent person.
        (iii) A parent of the indigent person.

    (2) Paragraph (1) does not apply in any of the following cases:
        (i) If an individual does not have sufficient financial ability to support the indigent person.
        (ii) A child shall not be liable for the support of a parent who abandoned the child and persisted in the abandonment for a period of ten years during the child's minority. * * *
When is a person "indigent"?  The Court noted:
What it means to be “indigent” is not defined within the applicable statute. Therefore, in  applying Section 4603, our Courts have applied the common-law definition of indigence.    In  so  doing,  we  have  held that:     
the indigent person need not be helpless and in extreme want, so completely destitute of property, as to require assistance from the public.  Indigent persons are those who do not have sufficient means to pay for their own care and maintenance.  “Indigent” includes, but is not limited to, those who are completely destitute and helpless.  It also encompasses those persons who have some limited means, but whose means are not sufficient to adequately provide for their maintenance and support. 
 Savoy v. Savoy, 641 A.2d 596, 599-600 (Pa. Super. 1994), quoting Verna v. Verna, 432 A.2d 630, 633 (Pa. Super. 1981). [Unofficial case links added.]
Any adult child whose parent is now, or might become "indigent", might be just an accident or medical emergency away from becoming liable for that parent's care under the cited statute and its application by the Pennsylvania courts in a debt collection lawsuit commenced by a creditor.

Concerns about the ruling were reported in an article entitled Pennsylvania Man Appeals to Court to Avoid Paying Mom's $93,000 Nursing Home Bill, by Susanna Kim, posted May 23, 2012, by ABC News.  Many readers' comments to the article reflect deep personal concerns and even anger.  See also: PA EE&F Law Blog posts "Filial Support" in PA? Really?!? (07/28/08); and PA's "Filial Responsibility" Law in the News (07/16/09).

On May 25, 2012, The Dickinson School of Law of Penn State University highlighted on its home page a link to a four-minute video presentation posted on YouTube, entitled Elder law expert Katherine Pearson explains new family support decision in PA and its policy issues.
A dramatic holding in a nursing home debt collection case by the Pennsylvania Superior Court "breaks new ground," explains elder law expert and Penn State Law professor Katherine Pearson.
In Health Care & Retirement Corporation of America v. Pittas, the nursing home obtained a judgment against an adult son for the cost of his mother's care with neither a contractual obligation nor "fault" on the son's part.
Professor Katherine C. Pearson briefly and conversationally addresses these questions in the video:
  • What is the history of the filial support statute in Pennsylvania?
  • What is so dramatic about the Superior Court's application of this law in the Pittas case?
  • What are the consequences of this decision?
  • What's wrong with requiring adults to support their parents?
  • What other issues do you see?
  • What policy questions does this case raise?
Katherine is an expert on "filial support" in Pennsylvania. She wrote a chapter on the topic, entitled Filial Support Obligations in Pennsylvania: Adult Children, Parents and Spouses, in the book, Elder Law in Pennsylvania (Jeffrey Marshall, ed., 3d ed. 2011), published by the Pennsylvania Bar Institute.

Just last Friday, June 8, 2012, she posted a more sweeping analysis of "filial support" laws online, including a comparison of each state's current laws.  Her article, which was accepted for publication by the University of Illinois School of Law's Elder Law Journal for its Fall, 2012 issue, is entitled Filial Support Laws in the Modern Era: Domestic and International Comparison of Enforcement Practices for Laws Requiring Adult Children to Support Indigent ParentsThat academic paper (Abstract No. 2079753) can be downloaded from the Social Science Research Network (SSRN) free (32 pages, PDF).

In early April, before the Pittas decision was issued, Katherine gave an extended interview about "filial support", which was broadcast on the Australian radio show Encounter.
During the program “Dutiful Sons and Daughters” Professor Katherine Pearson discusses filial support laws trends in the U.S. during a panel dialog. * * * A recording of “Dutiful Sons and Daughters” is available on Radio National, the largest single network in the country. A recording of an extended interview with Pearson can be downloaded from Radio National’s website. * * *
Tomorrow's Radio Smart Talk presentation, during a fifty-minute discussion, likely will consider these questions and more.  I hope that Katherine will be a guest.  The program will be broadcast at 9:00 AM and again at 7:00 PM.  I will update this posting afterwards to include both a web link and a podcast link for the recorded presentation.

Update: 06/12/2012 @ 11:30 AM:

I guessed correctly:  Professor Katherine Pearson was one of the panelists.  The other panelist was a local professional colleague and friend, Attorney Jan L. Brown, of Harrisburg, PA.  The program, entitled Who is responsible to pay for long-term care?, broadcast from 9 to 10 AM.  It will be rebroadcast at 7 PM this evening.

A recording of the program is available now.  The discussion among host Scott LaMar, Katherine, and Jan can be heard online by downloading an MP3 file (20.8 MB) posted at this link: 

Katherine and Jan concisely explained the legal principles operating in the Pittas case (now the subject of an en banc reconsideration petition filed with the PA Superior Court).  They also placed it into the context of Pennsylvania domestic relations law.  Only Pennsylvania and South Dakota statutes and case decisions will sanction such third-party collection actions against an adult child for long-term care obligations incurred by an indigent parent, without considering situational "equities".

They addressed consequences and planning considerations for families of indigent long-term care residents.  The callers' comments ventured further, however, questioning fairness of responsibility for an estranged parent's medical care, oppressive debt collection efforts of institutions, and selective application by institutions.  Katherine also mentioned the cost of litigation in defending such claims, which alone can be staggering.

The discussion then focused on long-term care insurance.  Both federal and state governments have promoted LTC coverage for the past few years as a viable individual hedge against future inability to support long-term care.  

However, LTC coverage has become prohibitively expensive for the middle class.  Two major issuers -- John Hancock and Met Life -- discontinued their LTC offerings.

Even after an individual's purchase and ongoing premium payments, LTC insurance coverage might be revealed, when claim would be made, as unreliable or inapplicable.  LTC coverage, as a future source of support, may be a "bet" more than a "hedge", due to contract limitations, changes in medical services and billings, or illiquidity of an insurer.

Katherine and Jan considered many questions and offered some tips.  However, given flux in applicable law, distinctive facts in individual situations, processing complexities, and reduced government funding, there can be no definitive general answers regarding long-term care provisions, much less specific predictions as to personal financial liability.

I heartily recommend this program for listening by lawyers and laypersons alike.