Wednesday, October 20, 2010

Mediation for Elderly

Today I enjoyed participating in a seminar presented in Pittsburgh by the Pennsylvania Bar Institute entitled "Using Mediation to Resolve Disputes Involving the Elderly".

This is the description of the course:
A variety of conflicts involving elderly persons call for effective resolutions that take into consideration a multitude of varying interests and often delicate relationships. ADR, and particularly, mediation often provides the structure and process for that to occur.
This course will provide anyone -- lawyers (general practitioners, as well as elder, healthcare, estates, trusts & probate and business law specialists) and members of the other helping professions -- with the tools they need:
  • to decide whether and when it is likely to be appropriate and helpful to use mediation or another type of ADR to resolve disputes in which that elderly person is involved,
  • to represent a client effectively in preparation for and during an ADR process to resolve such a dispute, and
  • to educate the family members of an elderly person about the conflict resolution options available to support them in maintaining positive relationships with their elderly relative.
Disputes involving the elderly arise in a variety of situations: estate planning and administration; addressing an elderly person`s changing needs or the care they are receiving (whether in a private or institutional setting); deciding on the appointment of a guardian; managing conflicts between elderly people and (of course) resolving intra-family conflicts; and conflicts within institutional settings which, if not resolved, can affect and elder's care and the liability that can accompany errors that arise when conflict is protracted.
In any of these situations, questions may arise about the ability of the elderly person to participate meaningfully in the ADR process due to his or her diminished mental capacity, and how to compensate for this condition. Sometimes, abuse of the elderly person is a factor, and almost always there are multiple parties to the conflict.
Addressing these challenges, in addition to those that typically arise in any mediation, calls for experienced and specially trained ADR practitioners. 
The course was presented previously, on October 13, 2010, in Philadelphia, where it was videotaped.

The interaction among the panel members and those in the audience today -- many with extensive mediation experiences -- set this four-hour session apart from other "lectures" I have heard (or delivered!). 

As a co-planner of the course from its inception, my contribution to written materials involved a new website hosted on Google Sites, which I entitled "Mediation for Elderly."  It remains available as a teaching tool supplementing the printed book.

On its web page entitled Article & Reports, I listed good resources to learn about mediation involving an elderly person.  One of those references is a recent article posted by the AARP Bulletin entitled "Oh, Brother! With Parents Aging, Squabbling Siblings Turn to Elder Mediation" (09/20/10), by Sally Abrahms.

Also on that web page, I referenced previous PA EE&F Law Blog postings regarding alternative dispute resolution, including mediation:
Key course planners Jim Rosenstein and Ann Begler, with the other Philadephia and Pittsburgh panelists, compiled a useful printed resource regarding mediation as one form of alternative dispute resolution well-suited to many seniors encountering problem settings.

Friday, October 01, 2010

Adult Protective Services to be Expanded

According to a Press Release issued on September 28, 2010, by PA Senator Pat Vance (R-Cumberland/York), the Pennsylvania House of Representatives on that date approved legislation sponsored by her "to provide protective services for adults with cognitive or physical disabilities."  The legislation (SB 699, PN 1888) was presented to the Governor on September 29, 2010, for his consideration of signing into law.

Senate Bill 699 (of the 2009-10 Session), is described as follows:
An Act providing for protection of abused, neglected, exploited or abandoned adults; establishing a uniform Statewide reporting and investigative system for suspected abuse, neglect, exploitation or abandonment of adults; providing for protective services; and prescribing penalties.
According to the Press Release, the legislation unifies a patchwork of services that currently exist for adults between the ages of 18 and 59, and reaches those adults with limited protections because they reside with families or non-regulated caregivers.
The Adult Protective Services system established by the bill clearly defines procedures for filing complaints of abuse, neglect, and exploitation. It also provides for investigations of those complaints and the development of service plans to remove the adult from imminent harm and provide for long-term needs. 
More than 40 states currently have adult protective services systems in place that provide some level of protection and advocacy for individuals with cognitive or physical disabilities between the ages of 18 and 60.  Pennsylvania, however, has had no process by which any person who knows of the abuse of an adult in this age group can offer any meaningful assistance. * * *
During the past few years, Senator Vance focused on elder law and disability issues.  Her coordination of efforts with advocacy groups -- such as those set forth in a 2-page online listing dated July 8, 2010 of organizations supporting Senate Bill 699 -- and professional associations, such as the Pennsylvania Bar Association's Elder Law Section yielded results in the Senate and the Legislature.
"For a number of years I have advocated for this legislation, but concerns regarding funding delayed action," Vance said.
"Under the new federal Patient Protection and Affordable Care Act, it appears money will be available for this worthwhile and important program that the fills the gap between the protective service systems for children and the one for older adults."
One of the organizations on that list of supporters of SB 699 is Vision for EQuality, Inc., which announced the House adoption of it with great enthusiasm:
September 28, 2010
The Pennsylvania House of Representatives today passed Senate Bill 699 to protect vulnerable adults who are abused or neglected. The House vote today was a unanimous 196-1.
SB 699 unanimously passed the Senate on July 3, 2010.
Governor Ed Rendell is expected to sign it into law. Pennsylvania is currently only one of five states yet to implement a protective services system. * * *
The advocates' years-long efforts -- now rewarded because federal funding should be available -- are noted on its home page:
Throughout Pennsylvania, there have been many cases of abuse and neglect of people with disabilities, yet there is no place to report such situations and no agency authorized to investigate them.

The PA Legislative Budget and Finance Committee (LBFC), an arm of the PA legislature, studied the issue in 2003 and concluded an adult protective services law was needed. According to that LBFC report [ An Assessment of the Need for an Adult Protective Services Program], an estimated 4,000 reports of abuse will be made statewide annually, and about 1,200 (or 30%) will be substantiated.

A House hearing held in the fall of 2006 documented a number of abuses, including a young woman with an intellectual disability who spent several days locked in a basement with her deceased sister and a woman with multiple sclerosis who was raped by her husband. Many individuals with disabilities do not come forward and press charges with traditional law enforcement because they fear retribution by the perpetrator on whom they often rely for care, food, and shelter. 

Pennsylvania has a protective services law for children and one for older adults, and now SB699 will authorize the development of a protective services system for adults ages 18 to 59. [Links added.]
Update: 11/17/10:

According to the posted Legislative History for SB 699, on October 7, 2010, Governor Rendell signed into law the legislation relating to "protective services for adults with cognitive or physical disabilities" as Act No. 70 of 2010.

According to Section 704 ("Effective Date"), "[t]his act shall take effect in six months."

Thus, the implementation date for the new law will be on April 7, 2011.

The Pennsylvania Department of Public Welfare will be responsible for administering the new adult protective services.  Searching the Department's website for references either to Act 70 or SB 699 does not yet yield results, but it would, no doubt, as the Department approaches the effective date for the new law.

Update: 02/13/13:

Nearly two years after the enactment, I still cannot find reference on the website of the Pennsylvania Department of Public Welfare to this law.  I wonder about its implementation under DPW.