Spouses of Hospice Residents Less Likely to Become Depressed

Symptoms of depression are less common in the spouses of hospice residents when compared to families where hospice was not involved, a recent study suggests.  Investigators at Mount Sinai's Icahn School of Medicine in New York City studied data from a national survey and Medicare claims, and followed more than 1,000 surviving spouses of deceased patients who were over age 50. They found those whose spouses were in hospice for at least three days were less depressed, and the positive effect was more prominent a year after the death.

Although they could not correlate specific services with improvement of symptoms, hospice offered medical services, symptom management, spiritual counseling, social services and bereavement counseling.  These services are provided to patients and their immediate families.

Approximately 45% of terminally ill residents die while receiving hospice care in the U.S, more than a 20% increase from the past decade.

This was the first national study to examine the mental health of spouses of residents with all types of serious illnesses.  Prior studies focused mostly on cancer patients and their families.

Source: McKnight's

Husband Acquitted of Nursing Home Rape of His Wife

The jury acquitted the 78-year-old retired farmer and former state legislator of sex-abuse charge in a case that captured international attention.

To read my prior post regarding and including a background of this case, click here.

Prosecutors had contended he was guilty of the felony because he had sexual contact with his wife after nursing-home staff members told him her Alzheimer's disease had stolen her ability to consent. The case raised wide-ranging questions regarding the law, and relationships between persons where one suffers from dementia. The defendant's attorney, in fact, warned that conviction might cause partners to avoid visitations in order to avoid potential criminal culpability.

Regardless the outcome, the case has led to a heightened awareness regarding the need for dialogue regarding such matters.  See, for example, Eliza Gray's article, "Why Nursing Homes Need to Have Sex Policies," published in Time magazine.  

Elder Justice Website Aids Reporting Elder Abuse and Financial Exploitation

The United States Department of Justice has launched the Elder Justice Website, as part of the Elder Justice Initiative designed to provide a coordinated federal response by emphasizing various public health and social service approaches to the prevention, detection, and treatment of elder abuse. Victims and family members will find information about how to report elder abuse and financial exploitation in all 50 states and territories by simply entering a zipcode.

The Elder Justice Act represents Congress’s first attempt at comprehensive legislation to address abuse, neglect, and exploitation of the elderly at the federal level. 

On the Elder Justice Website, individuals will find information about how to go about reporting elder abuse and financial exploitation.  The website is intended to serve as a “dynamic resource” and will be updated to reflect any changes in the law and current news in the elder justice field.

Payments from Special Needs Trust Causes Section 8 Ineligibility

Special Needs Trusts (SNT's) are generally designed to prevent beneficiaries from losing their Medicaid and Social Security eligibility.  These trusts are not without challenges and possible disadvantages.  In resolving  Social Security and Medicaid issues, SNTs often sacrifice other opportunities.  HUD's Section 8 housing assistance program, for example, has no language in its rules that expressly recognizes and protects SNTs.  A federal district court recently held that a local housing authority properly counted payments from a SNT as income when it determined that a Section 8 beneficiary was no longer eligible for a housing voucher.  DeCambre v. Brookline Housing Authority (D.Mass., No. 14-13425-WGY, March 25, 2015).

Kimberly DeCambre is the beneficiary of a court-established first-party special needs trust that was funded with the proceeds from a $330,000 personal injury settlement.  Ms. DeCambre receives Supplemental Security Income (SSI) and Medicaid due to a variety of serious medical conditions, and she also received a Section 8 housing voucher.  In fall 2013, the Brookline Housing Authority (BHA), the local agency that administers Ms. DeCambre's housing voucher, informed Ms. DeCambre that she was no longer eligible for Section 8 because the trust had disbursed more than $60,000 during the year for her car, phone, Internet, veterinary care for her pets and travel expenses.   A hearing officer upheld the BHA's decision.

Ms. DeCambre filed suit against the BHA in state court and her claims were removed to federal court.  Ms. DeCambre claimed that the BHA violated her civil rights by counting the payments from the trust as income and by discriminating against her due to her disability.  She also raised several due process claims.  Instead of hearing arguments on Ms. DeCambre's request for a preliminary injunction, the parties agreed to a case stated hearing to resolve Ms. DeCambre's underlying claims. At this hearing, Ms. DeCambre posited that it was improper to treat the distributions from the trust as income when, according to Department of Housing and Urban Development (HUD) rules,  the same payments would not be considered income had she simply taken the settlement as a lump sum outside of a trust.   

The U.S. District Court for the District of Massachusetts reversed, ruling that the BHA properly terminated Ms. DeCambre's Section 8 benefits.  Although sympathizing with trust beneficiaries who have difficulty  retaining Section 8 benefits, the court determined that it is "unable to find any regulatory support for DeCambre's argument that her Trust expenditures must be excluded from annual income and that her Trust corpus remained a lump-sum settlement.  To the extent BHA treated DeCambre's expenditures as spending from an irrevocable trust, rather than from a personal settlement fund, the Court holds that their determination was a reasonable one." The court also ruled that Ms. DeCambre's due process claims failed because she did not have a property interest in Section 8 benefits and was afforded ample hearings.  The court concluded that Ms. DeCambre was not discriminated against due to her disability because HUD treats special needs trust and non-special needs trust beneficiaries equally when it comes to income attribution.

To read the full text of the court's decision in this case, click here. 

To read a previous article regarding the complexities involved in crafting SNTs, click here and here.

Estate Plans Should Consider and Attempt to Resolve Guardianship

Well-crafted estate plans consider and attempt to resolve issues arising from incapacity and incompetency. Many estate plans are crafted to avoid or prevent guardianship. A recent New Jersey case illustrates why these concerns are worthy of attention.  After a trial court refused to consider the wishes of a putative ward, both respect to choice of guardian and place of residence, and accepted a "settlement" regarding guardianship to which the ward objected, a New Jersey appellate court was compelled to rule that a person who is incapacitated may still be able to express a preference as to his or her choice of a guardian or place of residence, both of which the court must consider before making rulings regarding the ward.  Matter of the Guardianship of Walter J. Macak, 377 N.J. Super. 167 (App.Div. 2005).

In the case, Mr. Macak’s daughter filed a complaint seeking the appointment of a guardian for her father and his million dollar estate based on her claim that he was incapacitated. The impetus for the complaint was her concern that Mr. Macak had Alzheimer’s disease, was unable to manage his finances, and was falling prey to financial “scam artists.”  Mr. Macak directed his attorney to oppose the guardianship application and specifically indicated that, if he was declared incapacitated, he was opposed to having his daughter appointed as his guardian.

Instead of opposing the guardianship or advocating for Mr. Macak's choice of guardian, his attorney negotiated a “settlement” under which she signed a consent order on Mr. Macak's behalf. The consent order, which the trial court signed without holding a hearing or making findings of fact and conclusions of law, declared Mr. Macak to be incapacitated and appointed another attorney as his guardian, and providing that the guardian could "continue" Mr. Macak’s “gifting program” of giving his daughter $ 18,000 per year.  The "settlement" also required that Mr. Macak  sign a separate written agreement with the attorney appointed as his guardian, in which he agreed to move out of his house into an assisted living facility within five days of the date of the agreement, but that she (his guardian) would agree to permit him to visit his house on a regular basis.

After the court-appointed guardian refused him access to his house, Mr. Macak sought to set aside the guardianship, claiming he had signed the guardianship “agreement” under duress, duress being the threat that if he failed to sign, his daughter would be appointed as his guardian. Mr. Macak also contended that he was not legally incapacitated but only needed assistance in managing his finances, and on that basis asked the court to appoint a conservator.