Florida Governor Heeds Nursing Home Industry and Fires Advocate for Elderly

Florida governor Rick Scott is making headlines for canceling the state's high-speed train project, but in another, less-noticed move he may be derailing protections for long-term care residents by firing their chief advocate in the state. The decision, an apparent capitulation to the wishes of the long-term care industry, has alarmed resident advocates, who fear a decline in their ability to protect the institutionalized elderly from substandard care and abuse. 

"We are very concerned that the governor of Florida has yielded to industry demands to dismiss an effective advocate for residents in a state that so many elderly Americans choose as their retirement home," said Sarah F. Wells, executive director of the National Consumer Voice for Quality Long-Term Care, in a press release.

The ousted advocate, Brian Lee, was director of the Florida Long-Term Care Ombudsman Program, a position he had held for seven years. Every state is required to have an ombudsman program that serves as an independent voice for residents -- addressing resident complaints and advocating for improvements in the long-term care system. Florida is perhaps unique in the nation in that all of its 300 ombudsmen are volunteers, not paid employees. The volunteers make annual inspections of licensed long-term care facilities and try to resolve problems.

"The ombudsman's role is to focus very narrowly on the representation of the residents," Hank Stevens, a volunteer ombudsman in Broward County, told ElderLawAnswers. "These vulnerable citizens have no lobbyists, trade council, or collectively, any representation -- except for what the volunteer ombudsmen provide. In the process of doing that, I suspect that we are, at best, a bit of a frustration for the long-term care industry." 

By all accounts the volunteers' leader, Brian Lee, was a passionate champion of the elderly, but one who crossed swords with the long-term care industry more than once. Immediately prior to his removal he had requested that the state's 677 nursing homes make public the names of their owners and operators, something that is required under the new federal health care law. Earlier, he had asked owners to demonstrate they had enough food and water set aside for residents in case of an emergency like a hurricane. 

When Republican Rick Scott won the governorship, the Florida Assisted Living Association sent him a letter recommending that Lee be replaced with someone friendlier to their industry. Scott seems to have listened, although Lee was given no explanation for his removal, according to the Miami Herald. (Governor Scott's office has not responded to ElderLawAnswers' request for comment.) 

In the weeks prior to Lee's firing, his army of volunteer ombudsmen worked hard to save his job. The heads of all 17 of the district offices in the state ombudsman program signed a letter to the governor calling Lee "the guiding light of the program. He has transformed the program's culture from one that was regulatory-focused to one that is now resident-centered, doing what is right for some of Florida's frailest citizens." 

Fears That Oversight Will Be Compromised
 
Advocates in the state are worried that Lee's removal signals the start of a weakening in the ombudsman's role in protecting elderly residents of long-term care facilities. 

"There is concern that members of the industry have a very strong lobby and would like to do away with many of the ombudsman's capabilities, especially the inspections of the nursing homes," said Linda Stevens, Hank Stevens's wife and also a volunteer ombudsman in Broward County. "I think politically the firing of Brian Lee is to move in the direction of lessening our capabilities to advocate for these residents." 

Lee, 39, is quoted in the Sarasota Herald-Tribune as saying he was proud to have renewed the ombudsman program's focus on resident rights during his tenure.  "I'm very glad I never compromised my principles or those of the program," Lee said.  The volunteers are now reaching out to lawmakers in the state to try to win back Lee's job.

---

For a Miami Herald article on the Lee's removal, click here.
For more on the nation's long-term care ombudsman program, click here.

Currently on The Swinton Law Firm Radio: When to Use an Elder Law Attorney

My website, www.swintonlaw.com,  has a link to Elder Law Radio. The current show is summarized below.  You can listen online or download it for later.

I hope you find it informative.
,

The Swinton Law Firm Radio

When to Use an Elder Law Attorney   Peter J. Strauss with Harry Margolis

Peter J. Strauss is co-director and founder of the Elder Law Clinic, which provides representation to persons for whom a guardianship is sought and serves as court evaluator in guardianship proceedings. He also teaches the Elder Law course. He has been an adjunct professor at New York Law School since 1992 and was named distinguished practitioner in residence in the fall semester 2003.

The Five Phases of Retirement Planning

Retirement has changed radically over the last several decades in America. Years ago, you expected to work most of your life for a single, large employer and you then count on a pension. "Retirement planning" meant figuring out how to use your free time. Today, in all likelihood you will be living in retirement on money you, yourself, saved. "Planning" means calculating rates of return and deciphering tax rules. 

This change from institution-funded to self-funded retirement constitutes a dramatic shift of responsibility. In recognition of this shift, ElderLawAnswers has significantly expanded its ElderLaw 101 section on Retirement Planning, providing you with information you can use no matter where you are in the continuum of retirement planning. 

The section begins with an explanation of the stages along that continuum -- the five phases of retirement planning and the key aspects of good planning to be carried out during each phase. Below is a summary.

PHASE I: Accumulation
This period begins when you enter the workforce and begin setting aside funds for later in your life, and ends when you actually retire. If your employer offers 401(k), 403(b), or 457(b) plans, have you signed up and are you contributing the maximum allowed? Did you know that the "new normal" requires retirement savings rates for most Americans to exceed 10 percent? If self-employed, are you shortchanging yourself on Social Security in order to reap tax deductions? 

PHASE II: Pre-Retirement
This phase occurs during the final years of the accumulation phase and should begin when you reach 50 years old or are 15 years away from retiring, whichever happens first. Now is the time to get your plan in place, making sure your finances are lined up correctly for retirement day so nothing will be left to chance. If you work for a company with a benefits specialist, arrange an appointment to become informed about the various ways you can convert your employer retirement savings into a stream of income or an IRA. Consider using a tool known as "scenario planning." Start learning about Social Security and your options for beginning to receive retirement benefits. Familiarize yourself with the basics of Medicare. 

PHASE III: Early-Retirement
This phase lasts from the day you retire until you are 70 years old. (For those who do not plan to retire until well into their 70s, some tasks in this phase may occur later.) A key purpose of this phase is to create a clear communication channel with your family so information can be shared, questions asked and answered, and decisions made in a calm, supportive way. It's also the time to assess how well your finances are working now that you are using your retirement savings. Fine-tune your income and expense projections, taking into consideration how you will meet minimum distribution requirements from your tax-deferred accounts. 

PHASE IV: Mid-Retirement
This phase begins at age 70 and lasts as long as you are able-bodied and high-functioning. Despite your good health, begin looking at what steps you would like your family to take should your condition decline significantly. In most cases your ability to make all your own decisions, care for yourself, engage with the world on your terms, and manage your affairs does not vanish in a split second. It takes courage to dive into a conversation about giving up and transferring control. 

PHASE V: Late-Retirement
This phase begins when your health has taken a turn for the worse and there is little likelihood of it being fully restored. You require significant help to function day to day. The hope is that by this point all the planning done in prior years makes this transition as manageable and life-affirming as possible.

Elderly Woman Can Sue Law Firm for Unfair Debt Collection

An 85-year-old New Jersey woman who missed her final mortgage payment because she was hospitalized can sue a law firm for unlawful debt collection, even though the law firm contacted her lawyer about the debt and did not contact her directly, a federal court has ruled.

Dorothy Rhue Allen missed her final mortgage payment of $432 on the house she had owned since 1976 because she was in the hospital. The mortgage company began foreclosure proceedings against Ms. Allen through a law firm. When Ms. Allen's lawyer asked how much she would have to pay to resolve the problem, the bank and law firm told her the total charges would be $5,797, including nearly $2,400 in legal fees.

Ms. Allen sued in federal court, alleging these charges were much higher than allowed under the Fair Debt Collection Practices Act. A district court judge dismissed the case, finding that the charges were not covered by consumer protection law because they were sent to Ms. Allen's lawyers. However, a federal appeals court found that the communication to Ms. Allen's attorney was an indirect communication to Ms. Allen and sent the case back to the district court to revisit. Other appeals courts have been divided on this question.

Ms. Allen's attorney, Lewis Adler, who has described his client as "just a wonderful little old lady that got sick," has asked the court to certify the case as a class action, alleging that what happened to Ms. Allen is part of a pattern of systemic abuses by lenders handling foreclosures during the recent real estate bust.

For an article on the case from the Washington Post, click here.
To read the full text of the decision, click here.

Proposed Chinese Law Would Require Adult Children to Visit Elderly Parents Regularly

  
Adult children in China would be required to visit their elderly parents on a regular basis under a proposed amendment to the nation's Law on Protection of the Rights and Interests of the Aged.
Wu Ming, an official with the Ministry of Civil Affairs, is reported as saying that the amendment would allow elderly parents ignored by their children to go to court to claim their legal rights to be physically and mentally cared for.

China has 167 million citizens over age 60, half of whom live alone without children and 20 million of whom cannot take care of themselves. In traditional Chinese culture, filial piety -- respect for one's parents and ancestors -- is one of the paramount virtues. But the longstanding tradition of children caring for aged parents is being challenged by history's largest human migration, in which 130 million Chinese have moved to cities in search of jobs, leaving nearly 60 million growing up apart from one or both parents, according to a recent article in the New Yorker. In effect, capitalism appears to be undermining traditional values, and the state's attempted solution is to legislate morality.

Wang Shichuan, a news analyst quoted by the site CriEnglish.com, questioned whether a moral issue is susceptible to a legal solution. Wang noted that many adult children work outside their hometowns and have little opportunity to visit their parents due to all-consuming jobs and few days off.

The Ministry of Civil Affairs is set to submit the proposed amendment to the Legislative Affairs Office of the State Council in the near future, according to the news site Global Times.

HAVE A HAPPY!

AND A MERRY TOO!

Avoid Disagreements Between Your General and Health Care Power of Attorney Agents

A general power of attorney and a health care power of attorney are two very important estate planning documents. Both allow other people to make decisions for you in the event you are incapacitated. Because the individuals chosen will have to coordinate your care, it is important to pick two people who will get along.

A general power of attorney allows a person you appoint -- your agent  -- to act in your place for financial purposes when and if you ever become incapacitated. A health care power of attorney is a document that gives an agent the authority to make health care decisions for you if you are unable to communicate such decisions.

While the health care agent is the one who makes the health care decisions, the person who holds the general power of attorney is the one who needs to pay for the health care. If the two agents disagree, it can spell trouble. For example, suppose your health care agent decides that you need 24-hour care at home, but your general power of attorney agent thinks a nursing home is the best option and refuses to pay for the at-home care. Any disagreements would have to be settled by a court, which will take time and drain your resources in the process.

The easiest way to avoid conflicts is to choose the same person to do both jobs. But this may not always be feasible -- for example, perhaps the person you would choose as health care agent is not good with finances. If you pick different people for both roles, then you should think about picking two people who can get along and work together. You should also talk to both agents about your wishes for medical care so that they both understand what you want.

If you have questions about whom to name for these roles, or you haven't yet executed these all-important documents, contact my office for help.