The California Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) will be amended effective January 1, 2008, to expand and clarify the list of who may bring a lawsuit for elder abuse, abandonment, or neglect after the death of the abused elder. Currently, the law provides that after the elder’s death, the right to bring a lawsuit under EADACPA transfers to the personal representative of the deceased’s estate, or if there is none, to the person or persons entitled to succeed to the decedent’s estate. See Welfare & Institutions Code Section 15657.3(d). Yet, what if there is a personal representative, but that person does not wish to pursue an elder abuse lawsuit, even though other family members do? Or, worse still, what if the deceased was a victim of abuse by the personal representative? Or the personal representative used undue influence over the elder to have him- or her-self appointed as personal representative? In such cases, the very person who would be a defendant in the elder abuse lawsuit has the power, as personal representative, to block the lawsuit from going forward.

A case in point is the Estate of Lowrie case. There, a son of the deceased elder, Laura Marie Lowrie, was appointed her first successor trustee. Laura Marie’s granddaughter was second successor trustee and beneficiary. After Laura Marie's death, her granddaughter filed an elder abuse lawsuit against the son, seeking findings that he had abused Laura Marie prior to her death. The court found that the son had financially and physically abused his mother, and awarded damages to the granddaughter. The son appealed, contending the granddaughter had no standing to bring an elder abuse lawsuit, because he was his mother’s personal representative, and thus, the only person empowered under EADACPA to bring a elder abuse lawsuit.

The Court of Appeal held that the granddaughter did have standing to sue as a plaintiff under EADACPA, and that the standing provisions of EADACPA must be read so as to “deter, not encourage elder abuse.” The Lowrie case is frequently used by lawyers representing families to provide a basis to pursue elder abuse cases on behalf of family members other than the deceased’s personal representative.

The amendments to EADACPA will codify the Lowrie court's holdings and provide more flexibility to family members who wish to pursue elder abuse lawsuits after the elder’s death. The text of the new statute, which takes effect January 1, 2008, is as follows:

“Section 15657.3 of the Welfare and Institutions Code is amended to read:

15657.3.
(a) The department of the superior court having
jurisdiction over probate conservatorships shall also have concurrent jurisdiction over civil actions and proceedings involving a claim for relief arising out of the abduction, as defined in Section 15610.06, or the abuse of an elderly or dependent adult, if a conservator has been appointed for plaintiff prior to the initiation of the action for abuse.

(b) The department of the superior court having jurisdiction over probate conservatorships shall not grant relief under this article if the court determines that the matter should be determined in a civil action, but shall instead transfer the matter to the general civil calendar of the superior court. The court need not abate any proceeding for relief pursuant to this article if the court determines that the civil action was filed for the purpose of delay.

(c) The death of the elder or dependent adult does not cause the court to lose jurisdiction of any claim for relief for abuse of an elder or dependent adult.

(d) (1) Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met:

(A) An intestate heir whose interest is affected by the action.
(B) The decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure.
(C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, "an interested person" does not include a creditor or a person who has a claim against the estate who is not an heir or beneficiary of the decedent's estate.

(d)(2) If the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate, as those terms are defined in subdivision (C) of Section 1064 of the Probate Code, is alleged to have committed abuse of the
elder or dependent adult, the persons described in subparagraphs (A),(B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse. Nothing in this paragraph shall require the court to resolve the merits of an elder abuse action for the purposes of finding that a plaintiff who meets the qualifications of subparagraphs (A), (B), and (C) of paragraph (1) has standing to commence or maintain such an action.

(e) If two or more persons who are either described in subparagraphs (A), (B), or (C) of paragraph (1) of subdivision (d), or a personal representative claim to have standing to commence or maintain an action for elder abuse, upon petition or motion, the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure.

(f) This section does not affect the applicable statute of limitations for commencing an action for relief for abuse of an elderly or dependent adult.”

The amendment will provide the flexibility needed to give interested family members the ability to bring elder abuse lawsuits and hold wrongdoers accountable. Thanks to Senator Ellen Corbett and her legislative staff for sponsoring this important bill.

Felicia Curran
www.ElderAdvocacyLaw.com

Kudos to California Advocates for Nursing Home Reform and Assemblymember Mike Feuer (D- Los Angeles). On March 27, 2007, the California Assembly Health Committee approved The Nursing Home Complaint Investigation Improvement Act (AB 399), authored by Assemblymember Feuer. The legislation would fight abuse and neglect by improving the quality and timeliness of nursing home complaint investigations by the Department of Health Services (DHS), the state agency that inspects and licenses nursing homes and other long-term health care facilities. Currently, state law requires DHS to begin investigations of complaints within ten days. But typically, after DHS starts an investigation many months go by before it finishes the investigation, makes a report, and requires the nursing home to correct any deficient care of elders in the nursing home. DHS’s delay leaves nursing home residents vulnerable to continuing neglect as the circumstances that prompted the complaint that is being investigated go uncorrected.

AB 399 would require Department of Health Services to complete investigations within 40 working days; send complainants a written summary of findings about their complaint; investigate facility-reported complaints of abuse and neglect within the same time frames as public complaints; and extend the number of days a complainant has to seek an informal conference from five business days to 15 days after receipt of the determination.

“Today’s vote is an important step toward restoring public confidence in California’s nursing home oversight system,” said Michael Connors of California Advocates for Nursing Home Reform (CANHR). “Timely DHS investigations will help ensure that nursing home residents are protected from further neglect and abuse once it’s been reported.”

AB 399 now moves on to the Assembly Appropriations Committee and then to the full Assembly. CANHR asks that you show your support by sending a brief letter to your Assembly member urging him or her to vote in favor of AB 399. CANHR's fact sheet includes a model support letter. You can find the name of your Assembly member and contact information at: www.leginfo.ca.gov/yourleg.html

The same type of law is urgently needed to protect elders living in residential care facilities for the elderly (R.C.F.E.s), such as assisted living and dementia care facilities. R.C.F.E.s are under another licensing agency, the Department of Social Services. DSS has NO time constraints for beginning or concluding an investigation, and it is very difficult to get DSS offices to respond to complaints and conclude an investigation. Contact Mike Feuer (Assemblymember.Feuer@assembly.ca.gov), the sponsor of AB399, and ask him to sponsor the same type of law for residential care facilities for the elderly.


Felicia Curran
www.ElderAdvocacyLaw.com

In the last blog entry, I urged you to write the California Department of Social Services, the agency that licenses residential care and assisted living facilities for the elderly, and demand that they post meaningful information about the facilities they license on their website. With respect to skilled nursing facilities or long-term health care facilities, at least there is a state law in effect that requires the California Department of Public Health (DPH) to post this information about those types of facilities. The problem is that DPH has flaunted the law and has not posted information about citations, deficiencies, and survey results on its website.

That may all change if Senate Bill 535 introduced by Senator Sheila Kuehl becomes law. This legislation, supported by California Advocates for Nursing Home Reform (CANHR) will be heard by the Senate Health Committee on March 28.

According to CANHR, SB 535 sets a new deadline for the DPH to establish a web site by March 1, 2008. The bill requires the web site to provide up-to-date information to the public regarding long-term health care facilities in their communities. The bill also requires DPH to post specific facility information, including:

• Whether the facility is for-profit or non-profit
• The number of licensed beds
• Whether the facility has filed a notice of intent to withdraw from the Medi-Cal program
• Information regarding all substantiated and unsubstantiated complaints, state and federal deficiencies issued to the facility, and descriptions of all state citations, including the nature and class of the citation and the amount of assessed penalties
• Information describing state and federal enforcement actions taken against a facility including license suspensions and revocations, denial of payments, temporary
assignment of management and receiverships

On March 28, 2007 (i.e. in less than three days), SB 535 will be heard in the Senate Health Committee, which is chaired by Senator Kuehl. CANHR is asking that you phone or mail or fax Senator Kuehl and ask her and the Senate Health Committee to vote “yes” on SB 535. Their sample suggested letter is:

“Dear Senator Kuehl:

I am writing in support of your bill, SB 535. It will greatly benefit consumers by requiring the Department of Public Health to establish a web site that contains up-to-date, accurate information on nursing homes in their communities. Consumers need this key information in order to make informed decisions about where to place their loved ones.

Thank you for introducing this important bill. I urge you and the members of the Senate Health Committee to vote “Yes” on SB 535.”

Senator Kuehl's phone number is (916) 651-4023. Since time is short, this may be your best option. Her fax is (916) 324-4823. Her email is senator.kuehl@sen.ca.gov.

Because her office gets hundreds of emails a day, they request that you phone or fax them to make sure your correspondence arrives on time.

For more information, visit the CANHR website at www.canhr.org.


Felicia Curran
www.ElderAdvocacyLaw.com

The rule of law worked in the favor of elder and dependent adults this past week, when the California Court of Appeal handed nursing home residents a key victory in the published case of Flores v. Evergreen at San Diego, LLC No. D048002 (Cal. 4th App. Dist. March 13, 2007).

Nursing homes and residential care facilities often demand that incoming residents or their families sign admission contracts that waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home. The phraseology in the contract may often be as bland as, “You agree to submit any dispute to binding arbitration” with no mention of the fundamental right to jury trial that is being waived.

Admission contracts are not the time or place to decide whether to give up your right to jury trial with respect to a possible future damage claim. You've got other things on your mind, and a lawsuit should be the last thing on your mind if your loved one is going to live there. You probably don't even realize that the pile of paperwork you are asked to sign contains a waiver of right to jury and a requirement of binding arbitration.

Elderly persons’ admissions to nursing homes are typically triggered by a decline in their condition or a catastrophic event that has thrown the family for a loop, making it impossible to care for the elder at home. The family is typically scrambling to find a place for the elder. The contract is typically presented on a take it or leave it basis, where someone says to you, "Sign here."

For these and other reasons, you are very vulnerable to the nursing home’s demands for waiver of fundamental rights at the point where you are signing an admission contract.

What if your spouse signs the admissions contract for you, and it provides for binding arbitration of future disputes? Does your spouse have the authority to waive your right to trial by signing the admissions contract for you? The California Court of Appeal answered that question this week in Flores v. Evergreen at San Diego LLC with a resounding "NO." Mr. Flores signed an admission contract for his wife at the time she was admitted to a skilled nursing facility. Mrs. Flores had dementia, which left her unable to sign on her own behalf. Mr. Flores did not have power of attorney for her. While at the facility, Mrs. Flores was injured, breaking her leg. The facility allegedly did not provide her medical attention for 24 hours after the fall.

When her family filed suit, the facility tried to kick the case out of court and into arbitration, relying upon the contract signed by Mr. Flores. The nursing home argued that because family members are authorized to make medical decisions on their loved one’s behalf and to enforce the loved one’s rights in the nursing home setting, the family in turn had authority to waive the loved one’s right to jury trial.

The Court of Appeal debunked that argument, ruling that Mr. Flores, who did not have a power of attorney for his wife, did not have authority to waive her right to jury trial at the nursing home's request.

Read the Court’s fascinating analysis (click here).

The laws governing nursing homes are supposed to help residents, not limit their rights. Hurray for the Court of Appeal for upholding nursing home residents' rights.


Felicia Curran
www.ElderAdvocacyLaw.com