The Legal Checkup Blog

PLEASE CALL YOUR REPRESENTATIVE TODAY!!!

Posted by Judith Flynn on Thu, Jul 24, 2014 @ 14:07 PM

RE: H1366, Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA)

 

The Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA) asks for your immediate advocacy to help get the UAGPPJA passed.  On July 10th, it passed the Senate, and it is currently being considered by the House Ways and Means Committee.  This bill is poised to pass the House, but we need your support NOW because July 31st marks the end of formal sessions for the 2013-2014 session.


We can get this important legislation passed, but we need YOUR help NOW.  Every phone call is critical!

PLEASE 1) call your representative and ask him or her to contact Speaker DeLeo in support of Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act.

2) Then call Speaker DeLeo's office yourself and urge him to support passage of this bill.   The main number at the State House is (617) 722-2000.


Following is a summary of why this legislation is so important:

While the UAGPPJA provides much needed clarity and a mechanism to establish the most appropriate forum for each case, it also provides significant discretion to the Massachusetts Courts to accept or reject jurisdiction of any matter based on the specific facts.  Judges may exercise temporary orders as appropriate for the protection of respondents pending transfer to or acceptance by another jurisdiction.   

 

The UAGPPJA will enable communication and cooperation between courts, simplify procedures for guardians and conservators to act in multiple jurisdictions when necessary (for example, if the protected person has real estate to be sold in another state), and facilitate acceptance and enforcement of guardianship and conservatorship orders in other states.  The UAGPPJA even authorizes the courts to decline jurisdiction or impose other appropriate remedies if jurisdiction is acquired by unjustifiable conduct, an issue of growing concern among elder law attorneys who see elders being improperly subjected to the guardianship process as the result of family disputes.

 

The UAGPPJA provides real solutions with no budget attached.  It will minimize the financial and emotional burden on elders and their families who would otherwise have to initiate a second court proceeding simply to satisfy a Registry of Deeds, a care facility, or a financial institution that refuses to honor an out-of-state guardianship or conservatorship order.  The UAGPPJA would be a win for our clients and their families, as well as the Commonwealth.


PLEASE HELP US TO ADVOCATE FOR PASSAGE OF THE UAGPPJA!!  THANK YOU!

 

 

Tags: elder law, lack of capacity, Elder Financial Abuse, undue influence, rights, exploitation

Wrongful Intent to Discharge Is Elder Abuse

Posted by Judith Flynn on Mon, Jun 09, 2014 @ 10:06 AM

I just received confirmation from a new client that the nursing home has rescinded its notice of Intent to Discharge her grandmother.  While this is great news, and our advocacy has paid off, this case represents a disturbing trend.

 

This is the third case in the past six months in which I was hired to advocate against a wrongful notice of Intent to Discharge an elderly resident of a nursing home on the basis of non-payment.  In all three cases, MassHealth coverage was in place, but there was an outstanding balance ranging from $6,500 - $13,000, for a period prior to the MassHealth approval.  In all three cases, the amount owed represented the Patient Paid Amount (PPA) for a period prior to the time when the client received a notice from MassHealth informing them of their duty to pay a set amount each month.

 

Most people are aware that there is a duty to pay something each month under the Medicaid regulations based on their income less any allowed deductions (the PPA).  Clients are certainly advised of this when working with an elder law attorney and most nursing homes will inform clients of this duty when they are assisting with the application.  (As a side note, I advise against using the nursing home or a non-attorney service that they may refer you to, but that is a separate topic.)  There are instances when the client is not informed in advance, however, through no fault of their own. 

 

By the time the client receives a notice informing them that MassHealth benefits have been approved, and detailing the amount that must be paid each month RETROACTIVELY to the date of eligibility (which could be as much as four months prior to the date of application), the funds may not be there to pay the outstanding PPA.  If a client is not informed that they must hold the funds or pay an estimated PPA each month while the application is pending, they may not have the funds available by the time they receive the notice from MassHealth.

 

In all three of these cases, the balance was owed not because funds were gifted and not due to misappropriation of funds.  The clients were simply not informed that they would need to pay a PPA back to the date of requested eligibility.  The nursing home assisted with the application in one case, and referred the clients to a Medicaid service in both other cases.  Nobody told the client to pay an estimated PPA while the application was pending or to hold the monthly income pending the approval from MassHealth.

 

In the most recent case, when MassHealth ultimately issued an approval notice and indicated the resident's duty to pay a PPA each month going back a couple of months, the nursing home continued to bill for the outstanding balance.  They sent a threatening letter to the resident's granddaughter, who managed the resident's checking account.  She tried to explain the situation to the nursing home administrator, and showed the bank records documenting where the funds went - they were not gifted - they were used to purchase items her grandmother needed.

 

When the granddaughter explained that she had four children and worked full time and barely made ends meet, and simply did not have the funds to pay the nursing home the outstanding amount, the nursing home issued a Notice of Intent to Discharge the resident for non-payment.  My client's grandmother is still mentally competent, so the law required that the nursing home staff serve the notice on her directly.  Imagine the fright my client's 88 year old grandmother experienced when she was handed a notice informing her she was going to be discharged from the facility that had been her "home" for the past two years.

 

To make matters worse, the notice indicated that the facility planned to discharge the resident to her granddaughter's home 30 days later (the law requires 30 days notice).  My client had informed the facility that she could not take care of her grandmother and, furthermore, that the setup and amount of stairs in her three-level condominium was an unsafe environment.  Her grandmother would require two people to assist her with transfers in and out of bed or up and down the stairs to the bathroom.  The facility knew that a discharge to my client's home would not be safe.  They knew that my client worked two jobs to make ends meet.  They knew that she did nothing wrong in this process, and that they had actually failed to inform my client that they were filing a conversion from community MassHealth to long-term care MassHealth on her grandmother's behalf, so she should either pay an estimated PPA from that point on or hold the funds pending the approval.  While they are not solely to blame either, they are more responsible for the situation than my client, yet they issued this notice to try to bully my client to find a way to pay the outstanding balance.  I find this tactic to be nothing short of elder abuse!

 

The time, energy, and expense the facility expended to pursue a wrongful discharge of this resident would have been better spent developing a better system to ensure that this problem does not happen again with another resident.  I am not un-sympathetic to these facilities.  I know that they suffer as a result of the delays and abuses in the MassHealth system.  So do my clients. But, I suggest that we would all fare better if we communicated in a collaborative manner to address these recurring issues, rather than defensively on a case by case basis.

 

Tags: long-term care, elder law, duress, Elder Financial Abuse, family, nursing home, rights, admission agreement, Medicaid, exploitation

Beware Scammers Claiming to be from the IRS

Posted by Judith Flynn on Mon, May 05, 2014 @ 11:05 AM

I had a frantic call from a client's daughter (Tanya) this morning, stating that she received a call from the IRS to inform her that they are suing her mother for fraud.  My client is elderly and lives in an assisted living facility in the area.  Her daughter lives out of the country.  As Tanya relayed the details of the call to me, it seemed likely that this was a scam.  After doing some quick research, I confirmed it, but the level of sophistication of some of these scammers is cause for alarm.

 

These scammers frequently prey on the vulnerabilities of elders, and this particular scam frequently seeks targets from other countries, sometimes benefitting from language difficulties or a fear of deportation.  The scammers learn enough personal information through social media and internet resources to lure their victims further into the conversation ... then they use fear and intimidation to make their victims comply with their demands.

 

While it is difficult to understand how so many people fall prey to such scams, we need to realize that these scammers are very good at what they do.  People from other countries frequently feel like "outsiders" on some level, and a call from the Internal Revenue Service stating that they are suing the person for fraud would be very frightening.  When a quick solution is offered (an immediate wire transfer of, say $5,000, the victim is relieved that the lawsuit, arrest, deportation, etc., can be avoided.  Your natural instinct may be to ask for the person's name and badge number, and some verification of their identity.  Some victims have reported that they asked these same questions, but they were met with anger and more agressive demands by the scammers.  While many people would realize that a real IRS agent would not behave in such a manner, the vulnerabilities of some of these victims prevents them from questioning authority - certainly not the IRS.

 

Following is an article regarding the most popular IRS scams.  Please spread the word and remind your loved ones not to fall victim to such scams! 

 

http://www.forbes.com/sites/kellyphillipserb/2014/02/19/irs-reveals-dirty-dozen-scams-for-2014/

 

 

Tags: Elder Financial Abuse, fraud, loved ones, exploitation

BEWARE THE "GREEN DOT" SCAM!

Posted by Judith Flynn on Fri, Apr 25, 2014 @ 08:04 AM

Following is an alert from the Hingham Police Department, but this scam has been taking place in many cities and towns.  It targets the elderly, so please alert any family members, colleagues, friends, or clients who might be vulnerable to such scams.  I think there should be a requirement that such cards should be traceable!!
-----
Elderly Hingham Woman Falls Victim
to Green Dot Scam

An 80 year old Hingham woman became the victim of the "Green Dot Scam" Thursday by scammers who called her claiming to be her son and also a Wenham (MA) Police Officer. The scammers said her son had been involved in a car accident and needed money to be released. The elderly victim lost $4,000. (Note: Several details of this scam are included in this release in an effort to help make others aware of some of the tactics used by scammers).

On Thursday, April 24, 2014 at 8:49pm the Hingham Police received a phone call from the Wenham Police who said they had received a call from a Hingham woman who had lost money today from the "Green Dot Scam". Hingham Dispatchers called the woman to let her know Hingham Police Officers would be coming to her house to speak with her.

Officers met her at her home and she explained she received a call at 11:00am today on her cell phone from a man who claimed to be her son. The phone number on the caller ID read "Withheld". Her son said he had been in a single car accident that involved the garage door to a home. His air bag had deployed and he required stitches from a laceration. He said he was being held by the Wenham Police and an Officer wanted to speak with her.

The Officer, identified his name as "Officer Steven Parker", spoke with an accent that she could not identify. He said the homeowner whose house was struck by her son's car was going to sue for damages. Also, in order for her son and his car to be released, she needed to pay $2,000.

The Officer told her to drive to the nearest pharmacy or convenience store and purchase four Green Dot MoneyPaks, each one loaded with $500. She was to return home and wait for another call for more instructions. She purchased 4 Visa Pre-Paid debit cards at a CVS and received a call from "Officer Parker". He told her she purchased the wrong cards and needed to go back to buy Green Dot MoneyPak cards so the transaction could be processed correctly. She returned to CVS and purchased the Green Dot cards, totaling $2,000, and returned home.

A short time later she received a call from "Officer Parker" on her home phone. The caller ID read "....". He told her to scratch off the 14 digit number sequence on the back of the four cards and read them to him. After she did this, he said she would receive another call once the funds had been processed.

At 7pm, "Officer Parker" called her back and said they had received the money, but in order for her son to be released she would have to send another $2,000 by purchasing 4 additional Green Dot MoneyPaks again with $500 on each. She purchased another $2,000 and when "Officer Parker" called back, she again followed his instructions and read the numbers over the phone to him. He then said her son and his car would now be released.

The victim later called her son, who does live in the Wenham, MA, and he explained he had not been in an accident and had not been involved with the Wenham Police at all. She then called the Wenham Police to ask about the phone calls and they called Hingham Police.

The scammers typically target the elderly, using their children/grandchildren as the victims who need help, and add the mention of an injury to help explain why the voice may seem different than their actual child or grandchild's voice, and the cash on the cards is transferred within minutes by the scammers. It is likely the scammers learned of her cell phone, home phone, her son's name, that he actually lives in Wenham, and her age from information available in internet searches as well as social media sites.

 

Tags: duress, Elder Financial Abuse, undue influence, fraud, exploitation