Some Senior Living Facilities Discriminating on the Basis of Disability

Continuing Care Retirement Communities (CCRCs) sound like a great idea, and in many ways they are.  They offer residents access to the entire residential continuum -- from independent housing to assisted living to round-the-clock nursing services -- under one "roof."  Residents pay an entry fee and an adjustable monthly rent in return for the guarantee of care for the rest of their life.

But while the transition from one level of care to another may be advertised as seamless, anyone considering a CCRC should be aware that moving to a higher level of care could mean losing access to privileges and amenities they once enjoyed and took for granted.  Depending on its policies, a CCRC may mandate separate facilities and activities for those requiring different levels of care. Although such restrictions may be illegal, they are not uncommon.

For example, the New York Times recently reported on the case of Ann Clinton, a resident of a CCRC in Huntsville, Alabama, who found herself barred from her cherished bingo games when she moved to the facility’s nursing unit while rehabilitating after back surgery. 

Clinton and her husband moved to the CCRC in 2012, paying a deposit of $351,424, and about $4,600 a month in fees.  Mr. Clinton shifted to the assisted facility unit and then to the nursing unit, where he died in September 2014. Through it all, Ms. Clinton, 80, looked forward to her weekly bingo game with friends and other residents of the CCRC’s independent living unit.

After her back surgery, Ms. Clinton was still able to attend the games using her motorized scooter.  But to her shock and surprise, she was eventually barred from them because she was living in the nursing unit.  

This isn’t the first time the Times reported on such a policy. In 2011 it covered the controversy that erupted when a CCRC in Norfolk, Virginia, declared that a popular waterfront dining room was off-limits to those in the assisted living and nursing units, and could be used only by independent living residents.  Suddenly longtime friends and even some married couples could no longer eat together because they lived in separate parts of the facility.  After residents contacted a lawyer and the news media, the CCRC reversed its policy.

The same thing had happened to the Clintons, according to the Times.  After Mr. Clinton moved to the CCRC’s assisted living wing, he was denied admission to the main dining room to eat with his wife, who was still in the independent living section.  The facility eventually changed its policy, allowing assisted living residents to use the dining room if independent living residents invited them.  

The CCRC has since suspended the bingo game that Ms. Clinton was barred from attending.  Ms. Clinton’s son says he plans to file a lawsuit on his mother’s behalf and is looking for a lawyer.

Attorneys who advocate for the elderly believe that excluding residents based on the level of care they require violates anti-discrimination laws like the Fair Housing Act and the Americans With Disabilities Act.  Admittedly, CCRCs may be trying to segregate residents in the belief that some residents would prefer not to have contact with those who are more incapacitated. 

“But that’s why we have anti-discrimination laws,” Eric Carlson, an attorney with the National Senior Citizens Law Center, told the Times. “You don’t want to capitulate to people’s prejudices.”

For more about CCRCs, click here. 

For more about senior living options, click here.

Daughter Who Signed as Trustee Has Authority to Bind Mother to Nursing Home Agreement

A Kentucky appeals court recently held that a daughter who signed a nursing home's financial agreement in her capacity as trustee of her mother's irrevocable trust has authority to bind her mother to the agreement. King v. Butler Rest Home (Ky. Ct. App., No. 2012-CA-000789-MR, March 13, 2015).

When Geneva King entered a nursing home, her daughter, Diana Livengood, signed the financial agreement as trustee of Ms. King's trust. Ms. King initially paid privately for her care, but when she decided to apply for Medicaid, she stopped making payments to the nursing home. The state subsequently denied Ms. King's Medicaid application.

The nursing home sued Ms. King and Ms. Livengood in her representative capacity, seeking payment of the outstanding balance. Ms. Livengood responded that Ms. King hadn’t signed the contract and that Ms. Livengood did not have authority to bind her. The trial court granted summary judgment to the nursing home and ordered Ms. King and Ms. Livengood to pay $87,413.32. 

One of the important aspects of this decision is that Livengood seems to have been arguing that only the trust could be held responsible, and not her mother's larger non-trust estate. The court rejected the argument.

The Kentucky Court of Appeals affirmed, holding that Ms. Livengood has the capacity to bind her mother to the financial agreement. The court notes that the signature line on the financial agreement that Ms. Livengood signed referred to the signer as the responsible party. According to the court, by signing the agreement in this way, "[Ms.] Livengood represented that she had the capacity to bind her mother. [The nursing home] admitted [Ms.] King in reliance upon this signature."

For the full text of this decision, click here. 

Groups Charge That New HUD Policy Gives Little Relief to Surviving Spouses of Reverse Mortgage Holders

Consumer advocacy groups are denouncing the U.S. Department of Housing and Urban Development’s (HUD) latest attempt to protect the spouses of reverse mortgage holders from being forced out of their homes when the mortgage holder dies. 

HUD’s plan, outlined in Mortgagee Letter 2015-03, “will not protect surviving spouses from displacement and will lead to more foreclosures,” the National Consumer Law Center charges in comments on the new policy filed on behalf of its low-income clients and five other advocacy groups.

As I previously reported, couples often fail to put both spouses on the reverse mortgage loan, either because one spouse is under age 62 or they are urged to do so by aggressive lenders in order to get a bigger loan. Few couples are aware of the potentially catastrophic implications.  In the past, if only one spouse's name was on the mortgage and that spouse died, the surviving spouse would be required to either repay the loan in full or face eviction.  

In 2013 a U.S. district court ruled that in not protecting spouses from foreclosure, HUD was violating the reverse mortgage statute, and the court ordered that the agency find a way to shield surviving spouses from foreclosure and eviction.  In response, HUD began by issuing a new rule in 2014 to help protect spouses left off loans written after August 4 of that year.  But the rule did nothing for non-borrowing spouses on loans that had been written before that date.

Mortgagee Letter 2015-03, issued in January 2015, was aimed at this group.  Under the new policy, when the borrowing spouse dies reverse mortgage lenders have the option of assigning the loan to HUD, a move that would allow an eligible surviving spouse to remain in the home.  However, the consumer groups charge that HUD’s guidance is so unclear that most lenders will choose the safer alternative of foreclosure, and that even if lenders do opt for the assignment route, few surviving spouses will qualify for it.  This is because the spouses will have to come up with a large sum of money to quickly pay down the loan in order to pass a HUD-prescribed loan limit test, a feat that will prove “impossible for many newly widowed non-borrowing spouses.”

The National Consumer Law Center and the other groups recommend alternative options that they say will provide true relief to non-borrowing spouses facing foreclosure while protecting the integrity of the insurance funds.

To read the Center's comments on the new HUD policy, click here. 

Inherited IRA Not Part of New Jersey Resident's Bankruptcy Estate

A U.S. bankruptcy court determined recently that, at least under New Jersey law, an inherited IRA is not part of the bankruptcy estate, notwithstanding the recent U.S. Supreme Court ruling in Clark v. Rameker. In re: Andolino, (Bankr. D. N.J., No. 13-17238, Feb. 25, 2015).

Christopher Andolino inherited an IRA worth $120,000 from his mother. He later filed for Chapter 13 bankruptcy, and claimed the IRA was an exempt asset.

The bankruptcy trustee objected to Mr. Andolino's bankruptcy plan, asserting that under the Supreme Court's decision in Clark v. Rameker (U.S., No. 13-299, June 13, 2014), inherited IRAs are property of the estate.  To read my previous article on the decision in Clark v. Rameker, click here.

The U.S. Bankruptcy Court, District of New Jersey, held that the inherited IRA is not property of the estate. According to the court, "whereas the inherited IRA at issue in Clark was determined to be an asset of the bankruptcy estate pursuant to nonbankruptcy law, i.e., Wisconsin law, this Court first must apply relevant New Jersey law to determine whether [Mr. Andolino's] inherited IRA is property of the bankruptcy estate." The court determined that under New Jersey law, an inherited IRA does not lose "qualified trust" status, so it is exempt from the bankruptcy estate under federal bankruptcy law.

For the full text of this decision, click here.

Early Onset Alzheimer's Information and Assistance from the ADEAR Center (Alzheimer’s Disease Education and Referral Center)

Early-onset Alzheimer's disease, occurring in people age 30 to 60, is rare but complicated. People living with early-onset Alzheimer’s (like Julianne Moore’s character in the movie “Still Alice”) may face particular challenges in dealing with work, raising children, and finding the right support groups.

A new online resource list from the National Institute on Aging’s Alzheimer’s Disease Education and Referral Center may assist younger people with Alzheimer’s, their families, and caregivers to find information and help. Topics include:

• Living with early-onset Alzheimer’s
• Legal and financial planning
• Caregiving
• Clinical trials and studies

All of the resources on this list are free and accessible online.

Visit the ADEAR Center website for other resources like free publications, caregiving resources, and more information about Alzheimer’s.

Share this resource via social media with the following message:

New resource list for people living w/ early-onset #Alzheimers & their #caregivers from @Alzheimers_NIH  http://1.usa.gov/1CiQi0Y