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

Medicare has announced that it will no longer pay hospitals for the costs of treating injuries and illnesses resulting from errors made by the hospital, according to Robert Pear of the New York Times. “If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.

“Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain ‘conditions that could reasonably have been prevented.’”

Among the conditions that will be affected are falls, mediastinitis (an infection that can develop after heart surgery), urinary tract infections that result from improper use of catheters, pressure ulcers, and vascular infections that result from improper use of catheters.

In addition, Medicare says it will not pay for the treatment of “serious preventable events” like falls, leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.”

And if you’re worried that the hospitals will bill the patient for charges that Medicare refuses to pay, the rules make that forbidden. “The hospital cannot bill the beneficiary for any charges associated with the hospital-acquired complication,” the final rules say.

Consumer advocates reportedly have been urging Medicare to adopt these rules for twenty years. The reason being that if hospitals know that they won’t get paid for making you sick, they will take precautions to prevent these illnesses and accidents.

The rules don't take effect until October 2008.

The Centers for Disease Control and Prevention estimates that “patients develop 1.7 million infections in hospitals each year, and it says those infections cause or contribute to the death of 99,000 people a year — about 270 a day.”

“Hundreds of thousands of people suffer needlessly from preventable hospital infections and medical errors every year,” said Lisa A. McGiffert of Consumer’s Union. “Medicare is using its clout to improve care and keep patients safe. It’s forcing hospitals to face this problem in a way they never have before.”

The change in the rules is coming too late for Margaret M. O’Neill(pictured here with her daughter Eileen O’Neill-Pardo). In 2004, Margaret died of an infection that developed during intestinal surgery at a Seattle hospital.

“The operation — to remove scar tissue — was successful, but the patient died,” Eileen said. “The hospital staff did not take steps to control the infection, which took over her body. My mother died less than a week after the operation.”



Studies have shown that well-established infection-control practices, "like covering doctors and patients from head to toe with sterile gowns and sheets while the catheters were inserted, can greatly reduce the incidence of hospital-acquired infections."

Medicare absolutely made the right call in putting pressure ulcers on the list of preventable conditions. Studies have repeatedly showed that hospital-acquired pressure ulcers can be virtually eliminated if correct precautions are taken by the hospital.

Presumably the rules also apply to nursing homes. If so, then Medicare will refuse to pay nursing homes for treatment of pressure ulcers that are acquired in the nursing home, or where the nursing home lets the existing pressure ulcers get worse. About time!

There are many unanswered questions, but one thing is for sure. Hospitals will begin to do things differently if they are not paid for their mistakes. The new Medicare rules will also provide patients and their lawyers with a formidable weapon to use in a neglect lawsuit against the hospital or nursing home. If Medicare deems that the expense of treating the illness or injury was preventable, that is powerful evidence that the hospital or nursing home was negligent in letting the illness or injury develop.

To read Robert Pear's article, click here.

Felicia Curran
www.ElderAdvocacyLaw.com

Remember Sen. John Edwards’ day following a nurse’s aide in a nursing home? (See Elder Advocacy Blog, April 28, 2007). Recently, both Senator Hillary Clinton and Senator Barack Obama have taken their turn.



Sen. Clinton spent a day at an hospital with an R.N. in Las Vegas. Senator Obama spent a day with a home health aide here in Oakland, California.



Now, I know that people have poked fun at these "walk-a- day-in-my-shoes" events. And sure, I laughed when Jon Stewart said he was waiting to see the video of Senator Joe Biden spending a day with the International Brotherhood of Horse Testicles Handlers. But the union representing health care workers is using the novelty of seeing a U.S. Senator sweeping with a dust pan to draw attention to the very important work done by the R.N.s, LVNs, home health aides and orderlies who are members of their unions. If this is what it takes to begin to get people's attention, so be it.

Although Barack seemed more relaxed and genuinely interested, Hillary as usual got straight to the point when she remarked how important nursing-patient ratios are. In Nevada, no state law mandates that hospitals limit the number of patients a nurse can handle per shift. So it important that the SEIU has negotiated nurse-patient staffing ratios for the nurses at the hospital Hillary visited. The nurse Hillary visited said that she still has too many patients to handle safely. In California, state law provides that hospitals most adjust their staffing levels to meet the actual needs of the patients they have admitted, and at a minimum the hospital must provide 3.2 licensed nursing hours per patient per day.

Even with a state law in effect, hospitals virtually never staff to meet the actual needs of the patients they admit, and more often than not don't have even the minimum number of nurses required under state law.

Barack visited the Oakland home of an 86-year-old home bound man who lives alone – sweeping the floor, making the bed and making him breakfast. Barack got it right when he said that the home health aide’s job description is “providing a life line to the outside world.” The man is in a wheelchair, and lives alone, but he's in his own home at least. The full-time home health aides enable him to stay in his own home and out of a rest home.

The home health aide gets health insurance, but even with union representation the home health aide gets no sick leave, no vacation benefits, and no overtime. She supports herself and 3 children on just $10 an hour.

Check out the videos, above, of the two Senators. Barack seemed to enjoy himself more, although he had the far messier job. But Hillary put in a full 12 hour day with the R.N., and then went over to the nurse's house for dinner.

Felicia Curran
www.ElderAdvocacyLaw.com

If it takes a village to raise a child, does it also take a village to keep an elder out of a nursing home? That’s the idea behind a new grassroots movement described in the New York Times article, "A Grass-Roots Effort to Grow Old in Your Own Home"(August 14, 2007). The article describes how elders across the country are organizing themselves, their neighbors, and friends into support networks, with the Avenidas Village (Palo Alto, Calif., starts in October 2007)
John Sink, director of programs, JSink@avenidas.org, 650-289-5421

Palisades/Foxhall Village
Alicia Juarrero, vice president, aliciajuarrero@gmail.com

Washington D.C. Area
Capitol Hill Village
Gail Kohn, executive director, info@capitolhillvillage.org, 202-543-1778

Transition in Place Services (Clifton and Fairfax Station, Va.)
William W. Cole, secretary/treasurer, wwcole@cox.net, 703-764-1300

Mount Vernon at Home (Alexandria, Va.)
Arnold Edelman, vice president, jaedelman@cox.net, 703-765-0369

Staying Put (New Canaan, CT)
Tom Towers, board president, tbtowers@optonline.net, 203-966-7917

Gramattan Village (Bronxville, N.Y.)
Christina Staudt, vice president, staudthome@aol.com, 914-337-3968

Center for Aging in Place Support (Resource center for groups in Westchester County, N.Y.)
Robert Waldman, president, rwaldman@aipsupport.org, 914-833-9654

Cambridge at Home (Cambridge, Mass., starts in October)
Kathy Spirer, executive director, 617-864-1715

Beacon Hill Village (Boston, operating since 2001)
Judy Willet, executive director, 617-723-9713, bhvillage@aol.com

The Washington A.A.R.P. has information about other area groups. Email Mimi Castaldi, dcaarp@aarp.org

E-mail listerv put together by attendees of conference at Beacon Hill Village (not an official B.H.V. site)
beaconhillvillagemodel@googlegroups.comobjective of staying in their own homes as long as possible.

Interviewed for the article were George Allen (pictured here) and his wife Anne, both 82 years old. They struggle to remain in their three-story house and neighborhood, despite what the article describes as "the frailty, danger and isolation of old age."

These groups refer to themselves as “Aging In Place” “villages,” and there are more than 100 of them across the country. They are part of a movement to make neighborhoods safe places to grow old. By pooling their collective talents, citizens may be able to provide for each other’s needs and thus put off the need to move out of their own home to an assisted living facility or nursing home. These groups register as nonprofit corporations, set membership dues, and line up reliable providers of transportation, home repair, companionship, security and other home or care services for their members. "The villages address what can be a premature decision by older people to give up their homes in response to relatively minor problems: No way to get to the grocery store. Tradesmen unwilling to take on small repairs. The isolation of a snowy winter, etc."

For a role model, the new groups looked to Beacon Hill Village in Boston, which pioneered the approach six years ago. "Beacon Hill has 400 members who pay yearly dues — $580 for an individual and $780 for a couple, plus à la carte fees — in exchange for the security of knowing that a prescreened carpenter, chef, computer expert or home health aide is one phone call away."

The amenities of an assisted-living center are thus far more expensive than a village’s membership fee.

These villages are not just located in wealthy neighborhoods. A few villages are cropping up where low-income families live, such as in the Richmond District of San Francisco, Falmouth, Mass., where year-round residents struggle when the summer crowd is gone; and in pockets of Westchester County, such as Yonkers, with middle class populations.

The reporter also interviewed Marie Spiro, 74, and Georgine Reed, 78, (pictured here) who share a house together, which they insist they will only leave “feet first.” Between them, they have already endured three knee replacements and other ailments. They're hanging in there, though.

"Marie describes huffing and puffing while grocery shopping; Georgine is increasingly reluctant to visit friends across town. Both women, who are childless, would already welcome help with meals, transportation and paperwork. If they need home care, Capitol Hill Village (scheduled to start services in October 2007) will be able to organize that."

“I’ve never had to rely on other people, and I never wanted to,” Ms. Spiro said. “But I’d rather pay a fee than have to ask favors.”

This is the first I have heard of these "Villages." If you are part of an Age-In-Place Village, I would love to hear from you, and help you get the word out to others in your community.

Would you like to find a village in your neighborhood, or get help with starting one? These are some contacts to follow up with:



To read the New York Times article click here.


Felicia Curran
www.ElderAdvocacyLaw.com

Bankruptcies are increasing faster among Americans 55 and over than in any other age group, according to a recent article in the Herald Tribune. People 65 and over accounted for nearly 5 percent of bankruptcy filings in 2002 -- nearly double the 2.5 percent figure from 1994, a report published in the American Bankruptcy Institute Journal found.

More older people are carrying more debt, from mortgages to home equity loans and even credit card bills, than ever before. The article quotes analysts who say the trend signals underlying problems with the country's health care, economic and elder care systems, which have implications for the next generation.

"If you have older Americans who are spending much of their money and savings for health care and general cost of living, they're not able to pass on that wealth to subsequent generations," said Deborah Thorne, an Ohio University professor who co-wrote a major 2001 study on aging and bankruptcy and is working on another.

A 2001 research study tracked a rise in the total number of older people filing for bankruptcy in the 1990s and a doubling since 1994 in the rate at which older people filed.

Reports by the National Consumer Law Center, the nonprofit group Demos, AARP and others have tracked the bankruptcy increase and potential causes in a series of reports.

They have noted that incomes for many older Americans have been largely stagnant -- the median income for older households is less than $25,000 -- while living expenses have escalated.

"For many retirees, Social Security and pension income are simply no longer sufficient to meet day-to-day needs," the National Consumer Law Center stated in a July 2006 report. "In rapidly increasing numbers, elders are using credit to pay for necessities like groceries, drugs and urgent house repairs."

A case in point is Brenda Broadbent, pictured above, who filed for bankruptcy at 59, a time she expected to be planning her retirement. She was self-employed as a real estate agent, and could not afford health insurance. A heart attack, which required bypass surgery, left her buried by nearly $100,000 in medical bills. She lost her house, her car and any sense of control. "It was a very dark time in my life," said Brenda.

"I was trying to get my ducks in a row" to retire at 65, she said. Now, "I'll be working probably until they put me in a pine box," she added.

Unable to work after her surgery, Brenda could not satisfy the mortgage, car and utility bills, or the thousands of dollars in charges for house repairs and new furnishings. Impaired by post-surgery memory loss, she could not return to handling real estate transactions. She is working only part-time now.

"My phone rang every six minutes, from 8 in the morning until 9 at night," Brenda said of the calls from creditors. "I knew I had to do something."

She filed for bankruptcy in the spring of 2004. Though much of the debt was eliminated over the next few months, she was hardly relieved. "I was devastated. I didn't want to go out of my house," she said. "I felt the whole world knew. You feel like you've committed a crime."

Carrying debt is a bigger danger for the older population because they have fewer years to recover and are more likely to be disabled, face age discrimination and confront other problems that preclude working to pay off bills.

Younger people can take second jobs or put more family members to work, but older people don’t have that option. Brenda is still applying for jobs. More than once, she has left a job interview certain that she would receive an offer, only to hear nothing. One prospective employer, she says, asked in a job interview about her "five-year plan."

"I almost laughed in his face," she said. "I should have said, 'To be alive and well.'"

President Bush and the Republicans foolishly say the solution is for people like Brenda to set aside money for health insurance. Brenda might as well try saving for a Lamborghini. For many older Americans the cost of healthcare insurance is out of their reach.

Healthcare is a right, not a privilege. Instead of protecting our elders, we protect the insurance industry's strangle-hold on healthcare insurance. Do your part to make 2008 the election year in which we take control of our healthcare system and guarantee health insurance for everyone.

To read the excellent article, click here.

Felicia Curran
www.ElderAdvocacyLaw.com