Monthly Archives: November 2017

Philadelphia Court Quickly Ends Senior Snatching

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A few weeks ago, Wynnewood PA geriatric care manager, Mimsye Katz posted in her Linkedin feed about an article appearing in the New York Post and New York Times. It explained how “Guardians can sell the assets and control the lives of senior citizens without their consent—and reap a profit from it.”  [click the link to the full article]. Shortly thereafter, the article was also cited and discussed in an ABA-sponsored user group of solo practitioner attorneys. The consensus of the Pennsylvania lawyers who participated in the discussion was that it might happen in other states, but it could never in Pennsylvania.

The next day, reading up on Pennsylvania cases, I saw the case of  Estate of Phillips, Court of Common Pleas of Philadelphia, decided on Aug 28, 2017 (PICS Case 17-1419). Apparently, the Philadelphia Corporation on Aging tried to invoke a guardianship on an unwilling senior who already had people caring for her under her Power of Attorney. The court, in its decision, said…”Where a petitioner for guardianship relied on hearsay evidence, the family of the respondent was providing her with care, and the respondent herself testified lucidly about not wanting or needing a guardianship, the court properly denied the petition for guardianship brought by Philadelphia Corporation of Aging.” It seems that the witnesses brought by PCA relied on hearsay about Ms. Phillips medical condition, but never obtained or reviewed her medical records. Based on Ms. Phillips detailed testimony and her family’s willingness to care for her, the court held the petition for guardianship brought by Philadelphia Corporation of Aging should be denied.

I recognize that some of my readers may have been involved in that case and that courts sometimes report an opinion in a way that makes them look good. If any readers have additional information about the case, please add it in the comment section.

Assuming the worse, is there any way to prevent something like this? We draft plenty of Power of Attorney forms in our office, and we always suggest that the agent keep a copybook or journal listing all of the events and tasks performed for the senior. This way, if any outside agency or third party makes an accusation that the agent is neglecting or stealing from the senior, there is some proof and documentation of what they did. Any agent acting under a Power of Attorney for a senior may want to follow suit, so they are not “fired” and replaced by a guardian.

I intend this to be a conversation, so if you have anything to add, please comment below!

Bob Gasparro,Esq.

 

 

Thanksgiving is the Time to Share your End of Life Decisions

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Be careful how you do this… Last Thanksgiving I was sitting in the living room after dinner and watching the football game, when I said to my family… “I never want to live in a vegetative state, dependent on some machine and fluids from a bottle. If that ever happens, just pull the plug.” My grandson got up, unplugged the TV, and threw out my beer.

On the other hand, this week is the perfect time to bring up the topic of Advance Medical Directives. If you’ve had your Medicare-sponsored “End of Life” discussion with your doctor then explain your choices to your family.

Unfortunately, a recent study revealed that most hospice workers and other folks do not have an Advance Medical Directive. Now it the time to draft it! I can refer you to three sites that can help you prepare the document:

First, the Five Wishes form offered by the “Aging with Dignity Foundation” is very popular and can be found here.

Second is the Pennsylvania Allegheny Bar Association which offers a free form, which can be found here:

Third, and I am partial toward this, is my firm’s video and form. The form we use is the one contained within the statute itself, and is nearly identical to the Allegheny Bar Association form, and has withstood the test of time. But in addition to that, we provide about an hour of video instruction for the principal, for the agent who must act for the person who drafted the form, and for any health care or hospice worker who must act according to the form. We tell them what their rights and duties are under the document. This course has already been presented to accountants and investment advisors and to attendees at senior centers. The price is $15. and it can be found here.

Many studies have been conducted about why people do not complete these forms. The primary reason is “never got around to it.” So why not get around to it this week?

Stay well until the next post.

Bob Gasparro

 

Pennsylvania Celebrates “Home Care Aide Week” November 12th through November 18th

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Pennsylvania has designated this week as “Home Care Aide Week” in appreciation of the part-time and full-time caregivers who provide assistive and personal in-home care. The Resolution –  No. 587 of 2017 – is reproduced below.

The Bill’s sponsors were Representatives Bullock, Neilson, Toohil, Davis, J. Harris, Bizzarro, Jozwiak, Hennessey, Prickett, Dean, Thomas, Ward, Murt, Longietti, Driscoss, Ryan, Pashinski, Burns, DiGirolamo, Kensey, Sainato, Millard, Kortz, Everett, Caltagirone, V. Brown, Donatucci, Marsico, Roebuck and M. Quinn.

The Resolution reads…

WHEREAS, Millions of Americans of all ages need some form of daily assistance to live at home; and

WHEREAS, Long-term nursing home care is generally more expensive than in-home care; and

WHEREAS, For-profit home care companies, third-party agencies and private individuals employ home care aides to assist elderly persons, convalescents and persons with disabilities who need help with activities of daily living; and

WHEREAS, Home care aides work with nurses, therapists, social workers and family members as part of the home care and hospice community; and

WHEREAS, Home care aides work closely with family members to coordinate care; and

WHEREAS, Their work includes observing, recording and reporting physical and mental changes in a client’s condition;

and

WHEREAS, According to the Bureau of Labor Statistics, home care aide is among the top 10 occupations with the largest job growth; and

WHEREAS, The National Association for Home Care & Hospice is a nonprofit professional association representing home care and hospice providers and advocating for the interests of persons who are chronically ill, disabled or dying; and

WHEREAS, The home care industry reduces hospital readmissions and ensures that vulnerable individuals have access to a range of services; and

WHEREAS, The House of Representatives honors the technical and interpersonal skills required to meet the demands of bringing home-based care to patients and families in communities throughout this Commonwealth and across the nation; therefore be it

RESOLVED, That the House of Representatives designate the week of November 12 through 18, 2017, as “Home Care Aide Week” in Pennsylvania in appreciation of those part-time and full-time caregivers who provide assistive and personal in-home care.

Stay well until the next post…

Bob Gasparro, Esq.- Senior News and Resources

Call to Action to Preserve the Medical Expense Tax Deduction

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The National Academy of Elder Attorneys is working with AARP and a few other organizations to prevent the proposed elimination of the medical expense deduction in the new tax bill before Congress.

Unlike other deductions, there is no organized group designed to protect the medical expense deduction (e.g. realtors always organize to protect the home mortgage interest deduction).

I am also an accountant and I sometimes helped other accountants prepare tax returns during “tax season.” I personally know that then they raised the threshold for the medical deduction from 3% to 10% of AGI, they cut off nearly everyone except those who had a catastrophic medical emergency.

While this deduction doesn’t affect lawyers in any way, the medical expense deduction affects many on this list who provide LTC and services for seniors or the disabled.

For the full story from National Academy of Elder Law Attorneys, follow this link.

Bob Gasparro, Esq.

 

A Primer on Pennsylvania Courts Before Next Week’s Elections

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We’re approaching the November elections, and we are expected to vote for judges whose decisions will have a very profound impact on our professions and personal lives. I recall that before I was an attorney, I was clueless about the court system, and judges in general.

Here is a primer on the Pennsylvania court system. You start a case with a trial or hearing. If it is a hearing with a government agency it is at an administrative hearing. Private matters are heard in the county court, in one of our 67 counties.

Then any party has an automatic right of appeal into either the Superior Court or the Commonwealth Court if they feel an error was made in the lower court. Since the laws get more complicated from year to year, it becomes easier to find grounds for appeal.

When you appeal, you go to either the Superior Court or the Commonwealth Court? What determines which?

That depends on the type of case that you had in the lower court. If you were involved in a negligence case, a breach of contract case, a criminal, family law or a Will contest, then the appeal is to the Pennsylvania Superior Court.

If you were involved in a case with a government agency such as a zoning dispute, a dispute over a citation from DHS or a citation from the Dept. of Nursing, Dept. of Transportation, Revenue, etc, then the appeal is to the Commonwealth Court.

Importantly, although there may be nine judges on both the Superior and Commonwealth Courts, each case is heard by a panel of three judges. This may occasionally result in inconsistent opinions between different panels. These conflicting decisions are heard by the Pennsylvania Supreme Court.

You do not have an automatic right to appeal to the Pennsylvania Supreme Court. Like the U.S. Supreme Court, it decides which cases it wants to hear. They decide what they consider important issues, and they resolve any inconsistent decisions from the two lower courts.

To find out what spots are up for re-election, go here.

Category: Laws

Author: Bob Gasparro, Esq.