A summer correlation, fireflies and the MDS

by Joel VanEaton

This time of year, I love to sit on my back porch and watch the fireflies dance in the twilight. Something from my childhood, I suppose. 

This year they seem particularly bright. Almost like fireworks in the trees every night. It’s spectacular. I’m thankful and nostalgic for these things. 

There are about 2,000 firefly species. Did you know that each species has its own unique flashing pattern for communication? They remind me of the MDS, with its multifaceted impact. 

The MDS is completed as part of what is known as the Resident Assessment Instrument (RAI) process. It’s essentially the Nursing process that we nurses learned in school, and it has five basic parts, as shown in the acronym ADPIE. 

ADPIE according to the RAI

1. Assess: “Taking stock of all observations, information and knowledge about a resident from all available sources (e.g. medical records, the resident, resident’s family, and/or guardian or other legally authorized representative).”

That’s the MDS. Along with other assessments, the MDS forms the foundation of the  RAI process

2. Decision Making/Diagnose: “Determining with the resident (resident’s family and/or guardian or other legally authorized representative), the resident’s physician and the interdisciplinary team, the severity, functional impact, and scope of a resident’s clinical issues and needs.”

That’s the Care Area Assessment or CAA process. Those who work the CAA process correctly are like artists painting a unique, colorfully dimensional picture of the resident.

3. Plan: “Establishing a course of action with input from the resident (resident’s family and/or guardian or other legally authorized representative), resident’s physician and interdisciplinary team that moves a resident toward resident-specific goals utilizing individual resident strengths and interdisciplinary expertise; crafting the “how” of resident care.”

That’s the care plan. The care plan is more than a surveyor placatory document. Rather, it is a unique and resident-centric roadmap. 

4. Implement: “Putting that course of action (specific interventions derived through interdisciplinary individualized care planning) into motion by staff knowledgeable about the resident’s care goals and approaches; carrying out the “how” and “when” of resident care.”

This is the care teams’ actualizing the RAI process for the well-being of the resident.

5. Evaluate: “Critically reviewing individualized care plan goals, interventions and implementation in terms of achieved resident outcomes as identified and assessing the need to modify the care plan (i.e. change interventions) to adjust to changes in the resident’s status, goals or improvement or decline.”

That’s the MDS schedule of assessments, along with monitoring the resident’s changing condition on a daily basis.

In these ways, the RAI process is a “richly practical means of helping nursing home staff gather and analyze information in order to improve a resident’s quality of care and quality of life.”

“The key to successfully using the RAI process is to understand that its structure is designed to enhance resident care, increase a resident’s active participation in care, and promote the quality of a resident’s life.”

In retrospect

While it didn’t seem to be at first, I remember as a new MDS coordinator discovering that the job I had been hired to do was what I went to school to learn. This discovery came as a result of reading the RAI Manual. 

Like the unique messaging that firefly species use to communicate, the RAI process identifies the individual characteristics of each resident that are further analyzed to create a resident-centric plan for care success to improve a resident’s quality of care, quality of life, and goal attainment.

Once I recognized the value of the RAI process, I remember having a greater sense that I was, in fact, practicing nursing as an MDS coordinator. 

That realization gave me great satisfaction, knowing that even in a less traditional nursing role I could still have a significant impact on the quality a resident could experience being cared for in my nursing facility.

We’re all in this together

While MDS coordinator often guides the RAI process, it is important to remember that this is a team project. It is an interdisciplinary problem-solving model that results in all team members being involved in a hands-on approach.

Each member of the IDT, with their distinct attributes and assessments of the resident, contributes to the “richly practical” RIA process.

When the RAI process is approached in these ways, there are significant positive outcomes for the resident and the caregiving team.

1. Residents respond to individualized care and “… have experienced goal achievement and either their level of functioning has improved or has deteriorated at a slower rate.”

2. Staff communication has become more effective resulting in an enhancement of the commitment to and the understanding of that care plan, challenging staff to hone the professional skills of their discipline as well as focus on the individuality of the resident.

3. Resident and family involvement in care has increased. “Staff members have a much better picture of the resident, and residents and families have a better understanding of the goals and processes of care.”

It’s good to remember

I often think about the road my career has taken. In one of my first clinical placements in nursing school I remember seeing the MDS for the first time and thinking to myself defiantly, “I’ll never do that!”

I started out as an RN in an ICU step-down unit, planning to ride the adrenaline rush of advanced practice in the ER. That all changed when an MDS opportunity came my way unexpectedly and I took it, ostensibly as a temporary break from the grind of nights, weekends and holidays. 

Looking back, I recognize my skill set was more finely tuned to what I do now, and I’m thankful for the turn of events. I am still in love with the bedside and the clinical aspect of nursing; that’s why I went to school. But the MDS path rewarded me with an opportunity I was not anticipating.  

A correlation of thankfulness

Here on the backside of my 23^rd year doing this, I can’t help but think about how things might have been had I not taken this nursing road less traveled, and I am hard-pressed to imagine a more satisfying development.

If fireflies are a metaphor for the RAI process, they also remind me of how grateful I am for being introduced to the MDS all those years ago.  The country hit “Flies on the Butter” captures it this way:

“Me and my best friend Jenny set up a backyard camp

Stole one of Mama’s mason jars

Poked holes in the lid and made a firefly lamp”

If you’re an MDS coordinator, you are exceptional. The lamp you create every day through the RAI process you participate in and oversee is key to your residents’ quality experience. Don’t forget that.  

Your residents are thankful for your firefly lamp, I hope you are too. 

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A summer correlation, fireflies and the MDS

Opinion | Preventing elder financial abuse

The frightening Nov. 5 front-page article “He had a stroke at a gas station, then lost nearly everything” was truly depressing. In October 2017, the New Yorker published “The Takeover,” a lengthy exposé of the elder-abuse/phony-guardian system in Nevada. It described in sickening detail the shocking takeover of helpless people — some couples, not just individuals — by grifter “guardians” conniving with local “judges.” In Nevada, they got caught and prosecuted. I had hoped that was the of end it.

Obviously, when there are people who need a guardian, the state should be that guardian — for no profit, truly guarding the health and welfare of the helpless individual and truly conserving their assets. That would also involve searching for the individual’s (or couple’s) relatives. A judge should know that the state has search capabilities that a guardian doesn’t.

Bill O’Toole, Arlington

I recently retired as a trust executive in Florida with 48 years’ experience assisting elderly clients with financial and life-care issues. The Nov. 5 article about guardianship described a process that is debilitating and degrading to people and their families when confronted with an austere adjudication of incompetency in court. Some of my most rewarding work was reversing the process to obtain a restoration of capacity — albeit at the cost of tens of thousands of dollars.

The best technique for avoiding the need for a court-appointed guardian is a revocable living trust. The person creating the trust initially serves as his or her own trustee, with a provision for a successor trustee to serve when needed. The trustee has broad powers to manage and contract for services that protect and care for the individual. There are other techniques, but the revocable living trust is a great starting point.

Chris Gair, Fort Myers, Fla.

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Opinion | Preventing elder financial abuse

OPINION: ADN coverage didn’t reflect guardianship’s complexity

By James Stinson

I am writing in response to the ADN’s Oct. 27 story regarding the challenges being faced in the guardianship system. Many of the issues raised in the piece were inaccurately explained or lacked a proper factual basis. Much of this is understandable because guardianship and the guardianship system are complex and cannot offer a soundbite explanation.

A guardian is entrusted with making all decisions of consequence on behalf of an individual that a court has deemed “incapacitated.” Appointing a guardian results in the taking away of an individual’s rights to make their most intimate life decisions and financial decisions. Guardianship is the greatest restriction on individual liberty short of incarceration. A guardian is delegated immense power by the court — and that power comes with immense responsibilities.

I want to begin by properly framing the overarching issue: The problems inherent in the guardianship system go beyond any single administration, agency or private provider. It is a multifaceted problem that has snowballed over a decade.

First, the guardianship system is supposed to be a primarily private system. The article failed to provide this basic information. When the Alaska Legislature created the Office of the Public Guardian in the early 1980s, it intended that it would remain a small advisory entity that would lend its expertise to private guardianship providers. The Public Guardian actually has a legal duty to continue to find a private guardian. Alaska Statute 13.26.720 states: “The public guardian, when appointed as guardian or conservator, shall endeavor, for as long as practical, to find a suitable private guardian or conservator for the public guardian’s ward or protected person.”

Second, the Public Guardian, like any other appointed guardian or conservator, has no unilateral power to transfer a client to a new guardian or conservator. It all requires a court process with full court oversight and review, because only a Superior Court judge can appoint, substitute or dismiss a guardian or conservator, whether it is the Public Guardian or a professional or even a family member.

When making those decisions, the law requires the judge to consider an appointment to the Public Guardian as the last resort. Family members, friends and private professionals are required to be given priority and, if suitable, appointed before the Public Guardian should even be considered.

Third, we are concerned that the story didn’t focus on and ask the real questions plaguing guardianship in Alaska. Have the statutes been followed properly over the last decade? Is there an over-appointment problem of guardianships and conservatorships that has led to our state’s current crisis?

While it is true there are people in need of a guardian or conservator, Alaskans should be equally concerned about whether this process is being overused, even if it is being done so with the intent to protect. If you are under full guardianship, you have no legal authority to sign a cellphone contract, set your own medical appointments or even decide where you want to live. The basic life decisions most of us take for granted as adults in our country are no longer yours to make.

Guardianship ethics require a guardian to work with a protected person to maximize their autonomy and independence. Guardians are supposed to be able to focus on what the person can do, not what they can’t. This has simply not been occurring at the Public Guardian due to the size of the caseloads. Public guardians have been forced to move from emergency to emergency with barely enough time to address basic needs, and we believe as a public agency our clients deserve the guardianship services the law and our ethics require. To do that, public guardians must have a caseload that allows them to address the clients as people they have committed to help.

Overwhelming the Public Guardian means that almost 1,600 people, whom the court have declared need our protection, will not get the protection they deserve.

Fourth, it is important to recognize that there are inherent barriers to a guardian getting what their client needs. From the obstacles of not being able to get an accurate Social Security number, a client not being Medicaid eligible due to owning property that needs to be sold, to the frustrations with financial institutions not accepting legal orders and everything in between. The story fails to convey that many of the challenges experienced by Cache Integrity and complaints lodged are about things wholly outside of the guardian’s control. The Office of Public Advocacy and private guardians deal with the same challenges on a daily basis.

From an outside perspective, someone simply sees that a client did not receive benefits and debt is accumulating. But it is the specific financial situation of each client that drives what can be accomplished. This is not to say that Cache Integrity didn’t drop the ball in certain cases. But one should be cautious about making that conclusion without knowing the specific facts of a case.

Fifth, Beth Goldstein’s response — “Tom, this is exciting” — was to the prospect of a nonprofit entering the field to help Alaskans who need a guardian.

The story failed to acknowledge that Cache Integrity actually agreed to waive its opening fees for many of the 45 cases involved. Thus, the $1,000 fee didn’t even apply to those cases. It also failed to acknowledge that the Public Guardian is required to charge those equivalent fees under the law.

This information made it appear as though Goldstein was taking delight in people being charged $1,000. This is simply not true. It was disappointing to see such a baseless inference being made.

One question that could have been asked is why the court kept appointing clients to Cache Integrity until its caseload exceeded 100. Another is why Tom McDuffie accepted those appointments when he didn’t have to. The simplest answer is probably the most likely: Everyone was doing the best they could to provide services to vulnerable Alaskans despite a severe lack of certified public guardians in the state. The story certainly highlighted why overloading a guardian is counterproductive.

Finally, the story didn’t properly acknowledge the good news on the horizon. The administration in cooperation with the legislature has given OPA six additional public guardian positions, as well as two eligibility technician positions. Once certified, these positions will ensure OPA is sufficiently staffed and there will be a buffer in place when a resignation occurs. It took a great deal of effort to be able to accept cases on the Kenai Peninsula despite recently losing two certified public guardians. By January, OPA should be able to accept a limited number of guardianship appointments in most jurisdictions. The moratorium is accomplishing what it intended even sooner than expected.

Guardianship is complex, difficult and specialized. It is challenging to distill the issues within the guardianship system into a digestible narrative. However, it should be emphasized that public guardians are dedicated public servants who want nothing more than to help people. If the Public Guardian collapses, there will be 1,600 people without guardians. That is what Beth Goldstein and I are working to prevent every day.

James E. Stinson is the director of the Office of Public Advocacy. 

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OPINION: ADN coverage didn’t reflect guardianship’s complexity

Why a California legislative measure underestimates older adults

by BY LAURA L. CARSTENSEN and PAUL IRVING

OPINION: – On June 15, World Elder Abuse Day, launched by the International Network for the Prevention of Elder Abuse and the World Health Organization at the United Nations, raised awareness about the abuse and neglect of older persons around the world. Among the many challenges faced by older adults, financial exploitation looms large.

Financial fraud is perpetrated on adults of all ages, but older people are more likely to be targeted, largely because they hold more wealth than younger people. Evidence that older people are especially susceptible to scams is mixed; in fact, some studies have found that older people are more resistant to financial scams than younger people. Nevertheless, when frauds are successful with older people, the losses they incur can be devastating, not only because older people have more money to lose, but because they also have shorter time horizons to recoup those losses.

There is widespread agreement among advocates for older adults and the financial services industry that solutions are needed. Bankers, financial advisors, and policy makers have been struggling for years to identify ways to protect older adults from fraud. More can be done, but it must be done thoughtfully. Unfortunately, legislation based solely on chronological age, such as California Senate Bill 278, would fundamentally change the way banks and other businesses engage with older people. Senate Bill 278 would establish a de facto fiduciary conservator relationship – limiting the financial autonomy of millions of competent older people and, for reasons noted below, hurt more people than it helps. Indeed, the legislation itself is premised on the pervasive stereotype that age is a reasonable predictor of competence. It is not.

In fact, chronological age is a poor predictor of functioning in adulthood. Older populations include both the wisest members of society and the most impaired. Moreover, although it is a devastating impairment, most people 65 years and older do not suffer from dementia; more than 90 percent of people aged 65 to 74 are not cognitively impaired. Rates of dementia do increase with age, but even in the oldest segment of the population, the majority of people are cognitively intact.

Of course, there are many reasons why people make poor financial decisions, such as drug addiction, inexperience, and mental illness; all of these factors, however, are more prevalent in younger people than in older people.

Normal age-related cognitive decline, or typical changes in cognitive processing that occur in most people, is evident mostly on speeded tasks that involve responses to novel stimuli. These changes have little effect on deliberative reasoning, especially on familiar tasks. In fact, because age is associated with greater familiarity with personal finances, older people benefit considerably from their experience when making financial decisions. A study published in the Proceedings of the National Academy of Science found that investing experience facilitated financial decisions even when the efficiency of cognitive processing was somewhat reduced.

Stereotypes about older people are pervasive, with “incompetent” among the most common. Because Senate Bill 278 will put the onus on front-facing employees (i.e., bank tellers) to determine if customers are making poor financial decisions, nonprofessionals will be charged with making decisions about the cognitive competency of older people. Understanding the potential legal action against their employers if employees fail to report, combined with an absence of consequences for over-reporting, employees will be highly incentivized to err on the side of caution. Given the vast evidence of ageism, this legislation will likely delay financial transactions, ranging from the most routine to time-sensitive real estate transactions, for millions of older people, not to mention the burden placed on elder abuse investigators whose time will be consumed investigating financial transactions made by competent people.

What can be done to address financial fraud? Employee training and financial education and planning services should be prioritized, as should collaboration and coordination with law enforcement and social services agencies. The power of increasingly sophisticated technologies should be harnessed.

We need real solutions that protect potential victims and do not unduly underestimate and patronize the majority of older people. In a time in which ageism remains so prevalent and the dignity and well-being of older adults should be of concern to all of us, we can do better than Senate Bill 278.

Laura L. Carstensen, Ph.D. is the director of the Stanford Center on Longevity. Paul Irving is a Senior Advisor at the Milken Institute and founding chair of its Center for the Future of Aging.

Full Article & Source:
Why a California legislative measure underestimates older adults

Letters: This change to state’s conservatorship law would get drug users off streets and save lives

Opinion // Letters to the editor

Chronicle readers

June 29, 2023

Used Narcan nasal spray kits are scattered near where they were administered to someone showing signs of a drug overdose in San Francisco. SB43 would define drug use disorder as a grave disability under the state’s conservatorship law.

Benjamin Fanjoy/Special to The Chronicle

As public mental health professionals and advocates for people with behavioral health disorders in the Bay Area, we support SB43, which will redefine what constitutes a grave disability under California’s conservatorship law, Lanterman Petris Short Act of 1972, which currently fails to recognize substance use disorders other than alcoholism.

We fully agree with The Chronicle's editorial; a comprehensive approach is needed to address the problems we face in caring for the most severely ill individuals, but a current lack of resources should not prevent reforms with the potential to save lives. 

SB43 eliminates arbitrary distinctions between mental health conditions and debilitating substance abuse disorders, which do not serve our patients.  

Current law defines “gravely disabled” as the inability to provide for one’s basic needs due to a mental health condition or chronic alcoholism. SB43 would include serious substance abuse disorders, including methamphetamine or fentanyl addiction; an incremental step to help those most affected — and often homeless — from revolving through emergency rooms and jails and dying prematurely. 

While concerns for civil liberties are justified, SB43 would have individuals who qualify brought into a civil — not criminal — process under existing law with multiple protections for individual rights.  

We agree that there is an urgent need to invest in our behavioral health infrastructure and workforce, but we must also bring our laws up to date so that when those investments are made, California’s health care providers can treat individuals suffering from the full range of behavioral health conditions.

Dr. Fumi Mitsuishi, associate clinical professor, UCSF Department of Psychiatry and Behavioral Sciences; director, San Francisco General Hospital Division of Citywide Case Management
Dr. Lisa Fortuna, professor and executive vice chair, UCSF Department of Psychiatry and Behavioral Sciences; chief of service, psychiatry, San Francisco General Hospital
Dr. Matt State, professor and chair, UCSF Department of Psychiatry and Behavioral Sciences

About Opinion

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Letters: This change to state’s conservatorship law would get drug users off streets and save lives

Opinion: Missouri gives options in powers of attorney for financial purposes

BY: Charli Steed

Charli Steed

To say that the COVID-19 pandemic changed many of our day-to-day activities and habits is an understatement. Estate planning and how we approach it has been no different. The COVID-19 pandemic has not only emphasized how unpredictable life can be, but also created personal uncertainty for many, causing both young and old to start thinking earlier about estate planning. 

The pandemic especially had an effect on Missouri’s most common type of power of attorney in estate plans – the durable power of attorney for financial purposes. More people are now executing these documents and making them effective immediately as opposed to upon the occurrence of a future event.

As the name implies, it’s a power of attorney that is durable, retaining its effectiveness even after the individual who executed the power of attorney, known as the principal, becomes incapacitated. This article specifically discusses two different forms of the durable power of attorney: 1) the “springing” durable power of attorney for financial purposes, which becomes effective upon a future event, such as one’s incapacity and 2) the “non-springing” durable power of attorney for financial purposes, which becomes effective immediately upon execution. Both allow an individual, commonly known as your “agent” or “attorney-in-fact,” the ability to manage your finances and business affairs when you are unable to. While they achieve the same end goal, they do so on different terms.

A springing durable power of attorney “springs” into effect upon the occurrence of a future event, which oftentimes is dictated in the document for that individual to be declared incapacitated by either one or two physicians. If such future event does not occur, then the power of attorney never becomes effective. Many people initially like the idea of springing durable powers of attorney because they are uncomfortable with making their power of attorney effective immediately, especially while they still have capacity and are able to manage their own affairs. However, the downsides to a springing power of attorney include delays in being able to use such power as soon as the need arises. As we know too well, doctors were even less accessible during the pandemic. As a direct result, an agent under a springing durable power of attorney would have to wait longer periods in order to obtain the necessary authorizations from physicians for a springing durable power of attorney to become effective.

A non-springing durable power of attorney, on the other hand, avoids the delays often associated with a “springing” durable power of attorney. Because it becomes effective immediately upon execution, this type of durable power of attorney certainly came in handy for many during the pandemic, perhaps assisting with the financial affairs of an elderly loved one or a child away at college. However, even though such powers of attorney can be extremely convenient, this type may seem daunting to some because it gives your agent the authority to act immediately upon you executing the power of attorney. A frequent concern of clients is that an agent may be tempted to commit fraud or otherwise abuse their authority. This concern is not unfounded. However, it is important to keep in mind that your agent is precisely that – your agent. Your agent owes you, the principal, a fiduciary obligation to exercise the powers conferred in the power of attorney in your best interests. If your agent breaches this duty, they can be held liable in court for such breach.

Both types of durable powers of attorney come with their own set of advantages and disadvantages. I learned early in my practice that no two estate plans are alike, so I strongly recommend consulting with professional legal counsel to advise in this area in order for you to make the best possible decision for your specific circumstance.

Regardless of the type of durable power of attorney for financial purposes you may choose, both types, and for that matter, all estate planning documents, must be executed by an individual who is of sound mind – meaning they must have requisite mental capacity to understand their actions. If you are assisting someone in executing a power of attorney and you are not entirely sure such individual meets the mental capacity requirement, for which the threshold is fairly low, you should consult not only with an estate planning lawyer but also a physician. 

Charli Steed is a senior associate in the tax, trusts and estates practice group at Spencer Fane LLP.

 

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Opinion: Missouri gives options in powers of attorney for financial purposes

Conservatorship

By John Donegan

The colorful antics of dysfunctional Hollywood celebrities are always a great source of voyeuristic entertainment and occasionally shadenfreude, but they can possibly lead to real problems for the rest of us. The Britney Spears melodrama may be one such case, as our craven, vote-hungry politicians react and pander.

For the few of you who weren't aware of this very publicized drama, Britney Spears is a famous pop star who melted down in 2008, lost custody of her kids, and was involuntarily placed in a mental hospital for a period. A conservatorship—a legal proceeding in which someone is court-appointed to handle the affairs of an incompetent—was established and her father appointed to be her conservator. She continued to perform while under conservatorship and made a lot of money.

Britney chaffed at being under conservatorship and proclaimed her mental competence. She occasionally ranted in court and in social media, sometimes posting nude photos apparently intended to prove her sanity. Her fans formed the #FreeBritney movement to advocate for the termination of the conservatorship, and after much drama, it was terminated in late 2021. Only time will tell if she is now capable of managing her own affairs. Los Angeles is full of charming opportunists awaiting the vulnerable, and Hollywood offers lots of opportunities to self-destruct and go broke.

I have more than just a casual interest, having practiced conservatorships and elder law for more than 40 years, including in Los Angeles, where I knew a couple of the key actors in Britney's proceeding during the 1990s. I was recently alarmed to read that some fans of pop star Britney Spears are advocating for the "reform" of California's conservatorship laws, and apparently have the ear of a politician. At the urging of the #FreeBritney group, and some disability rights advocates, California Assemblymember Brian Maienschein (D-San Diego) has announced his intention to introduce legislation reforming the current law, to correct what they see are defects in the current process.

Very few conservatorships offer this much drama or controversy. The typical one is for an elderly person with dementia, or who has otherwise become mentally incapacitated, and needs someone to make medical decisions and handle their business affairs. Sometimes, they are being exploited by opportunists such as a drug-addicted family member or "friend" and may have lost their homes or savings. A conservatorship is necessary to stop the victimization and to handle their affairs.

Relatively rarely a proposed conservatee objects to conservatorship. This is problematic because the mental disabilities that created the need for the conservatorship may also render them delusional or incapable of understanding their deficiencies, and they may be insistent upon doing dangerous or irrational acts. Or sometimes, they may instead actually be competent and just the subject of another's attempt to inappropriately control their affairs. Sometimes, they may vacillate from moment to moment on whether they're opposed. Especially in family affairs, it can be difficult to sort out needs and motives, especially when the fame, wealth, looks, or charisma of the conservatee distort the process.

The current conservatorship process is already complicated and hideously expensive, with thousands of dollars in court fees alone, and much more in attorney's fees. The conservatee must be periodically interviewed and evaluated by a court investigator, and detailed periodic accountings must be filed and examined by the court, fees approved, and hearings held. Almost every substantial act of the conservator, such as selling assets or moving the conservatee, must be approved by the court.

Many people who need a conservatorship are unable to afford one because the cost would quickly exhaust their assets. The last time the Legislature "reformed" the process, it became even more expensive and inaccessible. Conservatorships are necessary, but what good is a protective process that few can afford? I hope we are spared the destructive effects of politicians who have no understanding of the process and are blindly implementing the demands of a pop star's fans.

The public reaction to Britney's drama has been sharply divided, with one side arguing "it's her money and her life, and she should be allowed to do whatever she wants," while the other argues that society should protect the vulnerable from themselves. One side saw her emotional tirades as confirmation that she should be freed, while the other saw them as proof she was crazy. Conservatorships comes down to a general philosophical question of personal autonomy and whether or not society ought to intervene in really bad decisions. My guess is that we're split roughly 50/50.

Ironically, I come down in the "protect" side, despite my usual libertarian leanings (with apologies to frequent libertarian commenter Gail Lightfoot, who finds me insufficiently doctrinaire). I have just seen so much exploitation that, despite my usual deference to Darwinian process and opposition to liberal paternalistic government, I think the truly vulnerable should be protected. Still, it is hard to not empathize with those who object to a "Big Brother" government injecting itself into one's choices, especially since the issue of mental competence is so subjective.

Your thoughts? Δ

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Conservatorship

Opinion: Pass this bill that would let mutual funds delay withdrawals if they suspect financial exploitation

By Eric J. Pan

The Senate should follow the House and pass the Financial Exploitation Prevention Act 

Getty Images/iStockphoto

Financial exploitation is a significant, and potentially devastating, problem throughout the country, particularly for seniors and other vulnerable adults who are common targets of scammers and cheaters. 

These criminals prey on lonely and isolated seniors to gain their trust and affection, then often make an urgent request for money for reasons ranging from a personal emergency or last-minute plane ticket to medical expenses or gambling debts. An estimated 7.86 million cases of elder fraud take place annually in the United States, resulting in losses of $148 billion to this vulnerable population each year. 

While financial companies may identify certain withdrawal requests as unusual, there are currently no laws that enable them to stop such transactions. But there is legislation moving through Congress right now to allow the firms behind mutual funds and exchange-traded funds—which is where many seniors save and invest their money—to better protect vulnerable Americans.

A bill called the Financial Exploitation Prevention Act would allow fund companies to delay transactions reasonably believed to be the result of financial exploitation for as long as 15 business days. This would allow time to confirm the validity of the transaction, verify the customer’s contact information, or identify any legal guardians, executors or trustees.

The ability to pause a transaction is especially important because a key component of these scams is the pressure criminals put on victims to withdraw money urgently. Under the Financial Exploitation Prevention Act, fund companies can pause the transaction to verify its validity before the money is stolen. Once the money is gone, it’s likely taken from the senior forever and could potentially leave them unable to pay their bills or afford basic living expenses.

The legislation also would cover anyone 18 or older who is unable to protect his or her own interests.

In addition to allowing companies to delay suspicious transactions, the bill requires the Securities and Exchange Commission to report to Congress with recommendations for legislative and regulatory reforms to combat financial exploitation of seniors and other vulnerable adults. Elder abuse is a vastly underreported crime. Enhanced reporting from the SEC would likely lead to more information and data about these crimes, which could help identify additional safeguards to protect those at risk. These efforts could also identify ways to help educate potential victims as well as their family or caretakers to help prevent future theft.

The House of Representatives approved the Financial Exploitation Prevention Act—which was introduced by Rep. Ann Wagner (R-Mo.), a senior member on the powerful House Financial Services Committee—unanimously in October. While the Senate has yet to take it up, the bill passing the House with strong bipartisan support is a positive sign and should serve as a catalyst for action in the Senate.

The Investment Company Institute and its members prioritize the fight against financial abuse and exploitation. We are constantly working to ensure the fund industry uses the most sophisticated security measures and safeguards available and continually searching for new ways to protect individual investors. That’s why ICI strongly supports the Financial Exploitation Prevention Act and calls on the Senate to pass it immediately.

Eric J. Pan is president and CEO of the Investment Company Institute, the leading global trade association for mutual funds and other regulated funds.

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Opinion: Pass this bill that would let mutual funds delay withdrawals if they suspect financial exploitation

Guardianship and conservator questions answered

by Sandy Meyer

New Mexico's Third Judicial District Court

Guardians of last resort are appointed for incapacitated persons when no family or interested friends are located, or if family refuses or is unable to serve. In the guardianship process, there is a guardian ad litem, an attorney appointed by the court, to present the alleged incapacitated person’s declared position to the court.

He or she, as an arm of the court, may also make independent conclusions and recommendations based upon statutorily mandated investigation. The court also appoints a court visitor to investigate the client’s needs, interviews all the other professionals involved, all family members and interested persons, as well as reviews any available medical records.

The court appoints a qualified health care professional, who is to test the person for capacity or incapacity. All file reports with the court prior to the final hearing. The process for initiating the guardianship, notice requirements and the duties of the guardian, visitor, qualified health care professional and guardian ad litem are spelled out in the New Mexico statutes. The alleged incapacitated person may also retain his or her own attorney to represent them during the process.

If a family member surfaces after the appointment of a guardian of last resort, and expresses interest in serving, the guardian ad litem and the court visitor will interview the family member, and report to the court. The decision on who will be appointed is left to the discretion of the court. Once the court has read the reports, hears the testimony from all involved parties, the court then can decide to terminate the guardianship and conservatorship, limit the guardianship as it sees fit, or make it a full guardianship.

As a court-appointed conservator, statutes require the appointed person to marshal and secure all assets, which includes bank accounts, investment accounts, real property, vehicles, and all items of value. Conservators are required to file an inventory within 90 days, detailing all assets of the protected person. Thereafter annual reports are required to be filed with the court. There are auditors hired by the courts who are charged with reviewing these reports. If there are any questions or concerns, the court schedules a status conference to inquire about the auditor’s findings.

Placement of protected persons is chosen based on their needs, their financial status, and the availability of open beds. There is a relationship built with health care facilities to make certain protected persons are receiving the appropriate care.

Guardians of last resort are just that. There is no solicitation for clients from physicians, health care facilities or hospitals. There are no “kickbacks” or funds accepted from any physician, facility or hospitals, nor are referrals accepted from any of those entities. There is a fee for guardian and conservator services provided by guardians of last resort. Guardians and conservators do charge for their services. The hourly rate can be from $85 to $125 an hour, charged by the tenth of an hour. None of the expenses are paid by Medicare or Medicaid. The State Office of Guardianship does pay for guardian services for indigent people but has a long waiting list.

As nationally certified guardians, we are all required to follow the National Guardianship Association Model Code of Ethics and the Standards of Practice. These documents can be found at National Guardianship Association website. Nationally Certified Guardians are required to have continuing education to recertify every year.

Sandy Meyer, a national certified guardian, owns Advocate Services of Las Cruces, LLC

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Guardianship and conservator questions answered

OPINION: It’s Time to Defund Nursing Homes

By Charles Sabatino

Just as the defund the police movement underscores the institutional racism that cries out for fundamental change, the COVID-19 pandemic ravaging nursing home residents underscores a deep-seated ageism inherent in our institutional model of nursing home care. I believe it is time to defund the institutional model and replace it with a radically different model.

Today’s typical nursing home has never come close to meeting the public’s desire for humane and dignified long-term care. Warehousing large numbers of frail elders in hospital-like buildings with residents in double or triple rooms along with staff turnover as high as 100% unavoidably creates a high risk for resident safety and compromises quality of care.

Nursing Homes in the Pandemic

Even before the pandemic, 82% of all nursing homes had infection prevention and control deficiencies cited in one or more years from 2013-2017, according to the U.S. Government Accountability Office. And 48% had such a deficiency in multiple years.

The COVID-19 pandemic is a 9/11 moment for nursing home care.

Despite the $90 billion paid annually by Medicare and Medicaid to nursing homes, and exacting regulatory requirements addressing quality of care and quality of life for the nation’s 1.3 million nursing home residents, we as a society have failed to keep frail elders safe — let alone in an environment that older adults look forward to residing in.

Pandemic data from the Centers for Medicare and Medicaid Services indicate that, as of the end of May, over 32,000 nursing home residents had died in the 88% of nursing homes that reported data. Other analyses have reported nursing home resident and staff deaths represent 40% of the nation’s COVID-19 deaths and in some areas, as high as 75%.

As a result, multiple recommendations for change have gained attention. They include ensuring adequate personal protective equipment in nursing homes; disaster plans that facilitate quarantining; more and better trained staff and heightened monitoring and oversight of care.

But let’s be clear: These measures do little more than rearrange the deck chairs in a failing system.

The COVID-19 pandemic is a 9/11 moment for nursing home care and a test of our ability to reimagine nursing home care that puts the “home” into nursing homes.

The Green House Model

As the largest payor for nursing home care, Medicare and Medicaid hold the key. Now is the time to change facility requirements to gradually limit participation in the program only to facilities that provide the following:

• Small home-like facilities
• Single rooms and bathrooms
• A flattened, more flexible staff hierarchy with cross-trained staff
• A culture focused first on residents’ goals, interests and preferences

Fortunately, there is already a model for this kind of facility: the nonprofit Green House Project created by Next Avenue Influencer in Aging Dr. Bill Thomas in 2003. There are 300 Green House facilities nationally, each with 10 or 12 residents who have single rooms and private baths. Some call this “the household model.”

In The Green House, facilities are designed around a living room with a fireplace and an open kitchen where meals are prepared and shared. The cross-trained staff, backed by nurses and doctors, engage with residents, serving as nurse aides, cooks, cleaners and participants in meals and social activities. Not surprisingly, Green House staff turnover is far below that of traditional nursing homes.

Of most importance to policymakers, Green House Project homes have been proven to have high resident, family and worker satisfaction; better quality of care and quality of life than traditional nursing homes; costs comparable to traditional nursing homes and, in the midst of the pandemic, a much greater ability to prevent and contain illness.

Data collected in ongoing research has revealed only one resident death as of May 31 in a sample of 1,862 residents in 178 Green House homes providing skilled nursing.

As long as the nursing home industry can rely on the flow of federal money for the current model of care, it has no financial incentive to change, not even after the coronavirus catastrophe.

Change that flow, and a major cultural change in long-term care will follow.

The views contained in this article represent Charles Sabatino’s opinions and should not be construed to be those of either the American Bar Association or the Commission on Law and Aging unless adopted pursuant to the bylaws of the Association.

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OPINION: It’s Time to Defund Nursing Homes

Don’t ‘lock them up’

By Allen Cooper on February 21, 2019 1:00 am

 

During the last presidential elections cries of “lock her up” energized the crowds. Have our city supervisors taken a page from that book by yelling “lock the homeless up?’

The California legislature passed a law that would allow San Francisco, to institute a new type of conservatorship. Supervisor Mandelman with the encouragement of Mayor Breed has proposed legislation to implement this.

When someone is conserved they lose all civil rights and a court appointee has authority to make all decisions for them. The new law states that an individual who is seriously mentally ill, has a substance use disorder and has been brought to a hospital for competency evaluation (5150) eight times in one year can be taken to court by the Sheriff, the head of a hospital, or the head of the Department of Health for a conservatorship hearing to determine if they can care for themselves.

The law requires that housing, mental health and substance abuse treatment as well as other services be made available to them. In general, these are homeless people who are considered nuisances by the police and residents of the neighborhoods where they stay. It has been estimated that currently 55 individuals meet, and about 48 more may soon meet, the requirements for a hearing. This has the appeal of allowing the City to say it is doing something about bothersome homeless people.

This is a bad idea for many reasons. The people in question have already been found to be able to care for themselves on eight evaluations, thus it ignores the opinion of medical professionals and puts the decision in the hand of lay bureaucrats. Further, when these people get housing, treatment, and other services, they will go to the head of long waiting lists for these services, thus pushing out the elderly, disabled and pregnant as well as other high priority unhoused who are waiting for these services.

Past experience suggests the forced treatment approach is not likely to be successful in rehabilitating the conserved individuals. Many of these seriously mentally ill people have had drug treatment in the past and have failed. In fact, 30 percent of the seriously mentally ill are drug resistant and will never respond. Putting these people in the hospital and trying to medicate them will probably lead to expensive hospitalizations.

Forced treatment for substance use has been tried for many years but evidence that it leads to long term success is lacking. It tends to lead to reduced substance use while a person is in the program with relapse when they are discharged. The best one group studying this could say is that it is probably better than nothing. This is a contrast to those who enter treatment voluntarily, where there is reasonable rate of long-term success. Eventually many of these people may end up being conserved and housed out of the city at a cost of about $160,000 per year, or in even more expensive chronic psychiatric hospital beds.

Is there an alternative? A coalition of groups and individuals with expertise and experience in this area have suggested “voluntary services first.”

This would require intensive case management to encourage the people to enter supportive housing and encourage voluntarily entrance to treatment. This will require trained case managers who will see their patients on an almost daily basis to establish a relationship and coax them into supportive housing where they can manage them over the long term. Let’s try it before we end up depriving these unfortunate people of their civil rights. Call your supervisor and tell them don’t “lock them up.”

Allen Cooper, M.D. is a professor of medicine emeritus at Stanford University who worked for Healthright360 at the Treasure Island Job Corps and the Height Ashbury Free clinic after retirement. He has treated numerous patients with alcohol and drug use problems, as well as mental illness and homelessness.

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Don’t ‘lock them up’

Good Deed: Thankful to Rep. Wojcicki for help in passing elder visitation law

Gov. Bruce Rauner recently signed the Kasem-Baksys Visitation Law to help adult children unreasonably being denied visitation with their elderly parent by another family member.

Starting Jan. 1, close family members will be able to petition a court to visit their elder outside of a guardianship proceeding. This last detail is important, because many physically frail elders may still not qualify for guardianship. In other cases, the custodian of an elder who has lost competency may simply not want court interference with de facto powers the custodian has already been exercising.

Picture a blind or wheelchair-bound elder who, while mentally competent, might not physically be able to open the door. Imagine that elder’s reluctance to even try if it would mean angering the sole person providing his care and who owns the home in which the elder has been isolated for weeks or even years.

I couldn’t have asked for a more dedicated and caring lead sponsor for this long-overdue law than Rep. Sara Wojcicki Jimenez, R-Leland Grove. She and her staffer Ryan Melchin marshaled key bipartisan support, resulting in overwhelming bipartisan support in both houses. I also thank Sen. Melinda Bush, D-Grayslake, who carried the bill in the Senate, and Rep. Laura Fine, D-Glenview, the co-lead sponsor in the House.

Sandy Baksys
Leland Grove

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Good Deed: Thankful to Rep. Wojcicki for help in passing elder visitation law

Florida retirees should be alert to guardianship abuse | Opinion

Victoria Pearce

Florida is a state known for being a retiree’s ultimate dream destination. The tropical weather, white sandy beaches, and no state income tax — what more could one ask for? 

On their list of necessities, most residents probably don’t have a legal guardianship at the top. But they would be wise to do so. A guardian, at the most basic level, is defined as a defender, protector or a keeper. A guardian is, in essence, someone to oversee and support another person, known as a ward, who may not be able to do so on their own. Florida monitors and oversees 30,000 to 40,000 open guardianships at any given time.

Florida’s system allows for a professional guardian to be appointed to assist in meeting “essential requirements” for physical health and safety of a ward. The responsibilities of a guardian range from monitoring the ward’s financial resources to ensuring that the ward is receiving adequate food and shelter and maintaining good personal hygiene.

A mere overview of the system’s design and purpose make the system seem beneficial to all of those involved. But that is just the tip of the guardianship iceberg. A look below the surface, however, reveals a system both flawed and potentially harmful to those it was designed to help.

Under Florida law, a guardian or an attorney who has rendered services to a ward (previously the alleged incapacitated person) is entitled to a reasonable fee for services. These “reasonable fees” are to be paid from ward’s assets. These fees range from $50 to $95 per hour for a guardian, and can be up to $500 per hour for an attorney. With numerous hands on deck, along with the passions that come with these sorts of proceedings, the costs build quickly and continue to rise.

Every day cases arise in which the ward no longer wishes to be under guardianship or in which the ward and the guardian aren’t seeing eye to eye on issues. What happens when fees begin to accumulate for the guardian and attorney in these circumstances?

Florida law allows a guardian or an attorney to receive fees from the ward’s assets even for going against the ward’s own desires (i.e., fighting against the termination of a guardianship). So long as the guardian or attorney justifies the fees as acting in the best interests of the ward, he fees can be taken from the ward’s assets.

Ultimately, the system has created a business for professional guardians and associated attorneys. Instead of protecting the interests of a ward, Florida law allows for a cash cow to exist at the expense of those truly in need.

At this point, further guidance and oversight is needed to ensure that those who find themselves in need aren’t taken advantage of and don’t fall victim to abuses of this large and ever-growing business in Florida.

Victoria Pearce is a graduate of FSU Law and current attorney with Bleakley Bavol & Denman. Reach her at vpearce@bleakleybavol.com.  

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Florida retirees should be alert to guardianship abuse | Opinion