Total Counsel Law Group

How Do You Fight Financial Elder Abuse?

“Being a celebrity has to be the best gig in the world, right? It comes with money, property, prestige, constant attention and a gang of admirers. However, as the recent news stories about the late legendary Marvel comic book creator Stan Lee and ‘60s psychedelic artist Peter Max show, older celebrities can be just as prone and vulnerable to elder abuse as others.”

Next Avenue’s recent story, “Stan Lee and Peter Max: What to Learn From Their Elder Abuse Cases” notes that the Lee and Max stories have some striking similarities: both seniors look to have been taken advantage of by people close to them. Lee’s former business partner and caretaker Keya Morgan was arrested for elder abuse, false imprisonment and grand theft of an elder dependent adult.

The New York Times recently published a chilling story that Max’s estranged son Adam virtually kidnapped him, as he increasingly became incapacitated. Max’s second wife Mary had to fight for the right to bring him back home. However, Adam alleged that she tried to hire a hit man to damage the artist’s painting hand, and household employees accused her of neglecting her husband. Mary Max died of what is thought to have been suicide in New York City in June.

In recent years, the article said that Max was alleged to have been exploited by his family and associates, who had him signing canvases that others had painted in his trademark style. These bogus paintings were then sold at auctions, as if they were his original artwork.

Elder abuse occurs to one in 10 adults over 60, according to the National Council on Aging, and 60% of elder abuse is perpetrated by family members. About two-thirds of those perpetrators are adult children or spouses. One of the most common forms of elder abuse is financial elder abuse. That’s the misuse or withholding of an older adult’s resources by another. Here are three preventive measures:

1. Don’t let your parent be isolated. Seniors who are mostly alone can become vulnerable to a “gateway” caregiver. That’s a person claiming to be looking out for the person, but instead they may get a power of attorney and transfer that person’s property and financial assets into his or her own name. Help fight this, by having your parent spend time with friends and family.
2. Help your parent with proper legal documents for her financial assets. This will ensure that the senior’s assets don’t fall into the wrong hands. Ask an estate planning attorney about a will, a living trust and a power of attorney. A power of attorney allows a trusted agent to manage your parent’s finances, if he or she can’t.
3. Increase communication with siblings. Everyone in an older person’s life can be the eyes needed to report abuse at the first hint of a problem. This puts a vulnerable senior on the “radar” for these agencies to follow up on for further issues.

Reference: Next Avenue (June 14, 2019) “Stan Lee and Peter Max: What to Learn From Their Elder Abuse Cases”

What States Rank the Highest for Elder Fraud in Total Losses?

“Georgia is fifth in the country for elder fraud in total losses, an online publication, Comparitech, reported this month.”

The four states that have higher losses than Georgia are California, Florida, Texas, and Arizona. Georgia’s losses in 2018 totaled $1.5 billion, according to The Augusta (GA) Chronicle’s recent article, “$1.5 billion lost to elder fraud in Georgia last year.”

The article reports that these types of cases have seen an uptick over the past several years, but Georgia hasn’t seen one type of elder fraud that occurs more often than others.

“We have it a good bit,” said Jefferson County Chief Deputy Col. Tim Moore. “We work multiple cases where people have been defrauded. It’s an ever-changing threat.”

Common scams that defraud the elderly include phone calls where the scammer says that he is a law enforcement officer, a representative of the IRS or another agency, or of a business such as a utility company.

Law enforcement provides advice for the public:

• No one should give out any personal information, such as Social Security numbers, bank account numbers, or credit card information. Don’t make payments or make any agreements over the phone.
• Officials also warn that if the caller disconnects in the middle of the conversation, don’t call back because they will charge you for the call.
• Remember that state and federal agencies won’t call and threaten citizens with a warrant over the phone.

In addition, if you get a suspicious email, don’t open its attachments and don’t click on any links that may be in the email. You should contact the agency whose name appears as the sender and verify that is who actually sent the email.

Comparitech explains that the vast majority of elder fraud cases in the U.S. go unreported, and they estimate five million cases of elder fraud occur in the country annually, resulting in $27.4 billion in losses.

Reference: Augusta (GA) Chronicle (May 20, 2019) “$1.5 billion lost to elder fraud in Georgia last year”

Stan Lee’s Former Manager Arrested on Elder Abuse Charges

“Stan Lee is sadly gone but the Marvel icon is far from forgotten, especially in the L.A. County District Attorney’s office.”

District Attorney of Los Angeles County Jackie Lacey has leveled elder abuse charges against Stan Lee’s former business manager, Keya Morgan.

MSN’s recent article, “Stan Lee’s Ex-Manager Hit With Elder Abuse Charges; Arrest Warrant Issued” reports that Morgan is facing one felony count of false imprisonment of an elder adult, three felony counts of theft, embezzlement, and forgery or fraud against an elder adult, as well as the initial elder abuse misdemeanor count.

Morgan took control of Lee’s business affairs and personal life in February 2018. Lee, the creator of Spiderman, the Black Panther, and other comic book heroes, had assets of more than $50 million in the last years of his life. Lee passed away on November 12, 2018. Morgan is said to have isolated his client from family and friends. Morgan also embezzled or misappropriated $5 million of assets, according to documents filed in Los Angeles Superior Court in 2018.

The five counts of elder abuse filed on May 10 could put Morgan in prison for 10 years, if he’s found guilty.

The public first learned of the troublesome relationship between Morgan and Lee last summer, when the then 95-year old Marvel comic book legend sought a restraining order against his ex-aide over elder abuse. The request was made just three days after Lee put out a June 10, 2018 video on social media insisting that he and Morgan were working “together and are conquering the world side-by-side.”

Because of the video and the elder abuse filing, Lee’s financial advisor was arrested by the Los Angeles Police Department on suspicion of filing a false police report, allegedly concerning a supposed break-in incident at Lee’s residence.

A three-year restraining order against Morgan was granted by a county judge last August. He was found guilty of the false police report misdemeanor charge in April 2019 and was ordered to stay away from Lee’s family and residence among other conditions.

After years of making cameos in all the Marvel blockbuster movies, Lee’s last appearance was in the record smashing Avengers: Endgame, which was released last month.

Reference: MSN (May 15, 2019) “Stan Lee’s Ex-Manager Hit With Elder Abuse Charges; Arrest Warrant Issued”

Will Minnesota Finally License Assisted Living Facilities?

“The Minnesota House passed a bill Friday that would license assisted living facilities across the state. Minnesota is currently the only state in the country that does not do so.”

Right now, Minnesota is the one remaining state that does not license assisted living facilities.

A House bill calls for an end to this, but the Senate’s version of the legislation was still not scheduled for a vote, worrying advocates who have spent two years fighting for reform.

KARE 11 in Minneapolis recently posted the article “Elder abuse bill passes MN House.” According to the report, with just days left in the legislative session, groups like AARP and Elder Voice Family Advocates fear politics could once again stop actions designed to protect seniors.

Those groups and families of seniors rallied outside the House chamber in support of the bill. In addition, those families have testified repeatedly at legislative committees. They’ve told their painful stories of family members who were abused and neglected in Minnesota’s senior homes.

Two families shared a similar horror story. No one checked on one man’s father, who had died in his room. His body was neglected for seven days. The same thing happened to a woman, who died and was not checked on for at least two days.

Both political parties agree that reforming elder care is important, but they, along with Governor Mark Dayton, couldn’t agree on reforms last year. There are also a few obstacles to moving the bill through the state legislature.

First, there is a wide gap between the two sides on the amount of funding needed to begin licensing assisted living facilities. The House plan includes millions of dollars more than the plan in the Senate.

Second, Republican senators are strongly against any changes to the law that would make it easier for seniors and their families to sue facilities.

The AARP and Elder Voice support what they see as a stronger version of the bill that passed the House. However, they want both bills to get a vote because they fear if they don’t, for a second year in a row budget battles will leave seniors unprotected.

When asked who will take the blame if efforts fail, Mary Jo George with AARP said, “I hate to say it, but I do think the Senate really, a lot of this rests on the Senate.”

With thousands of new abuse and neglect cases reported each year, families say they just can’t wait.

Reference: KARE 11 (May 10, 2019) “Elder abuse bill passes MN House”

Senator Klobuchar Reintroduces The AGE Act

“U.S. Senator Amy Klobuchar (D-MN) reintroduced the Americans Giving Care to Elders (AGE) Act to provide financial relief to caregivers, by creating a tax credit for the costs of caring for an aging relative.”

The AGE Act would let caregivers qualify for a tax credit to help offset expenses. This includes buying assistive technologies and devices, respite care and making necessary home modifications. The tax credit would be up to $6,000 per year.

News 8000 reports in the article “Klobuchar Introduces Legislation to Provide Relief to Those Caring for Aging Relatives,” that the Minnesota Senator and presidential candidate first introduced the AGE Act in 2015. The bill is co-sponsored by Senators Mazie K. Hirono (D-HI), Tina Smith (D-MN) and Dianne Feinstein (D-CA).

“We know that caregiving can be extremely expensive—especially when family members must quit a job or reduce hours in order to provide care,” Klobuchar said. “To help ease the emotional and financial toll, the AGE Act would provide family caregivers with tax credits to offset the costs of care. We have to make sure the millions of family members who serve as caregivers for their aging loved ones are able to not just take care of others, but also themselves.”

Those in favor of the bill, like the American Heart Association, feel that caregivers are an indispensable part of the health care system. They can play a significant role in the recovery and well-being of heart disease and stroke survivors.

As the nation’s population ages, the need for caregivers will increase. Klobuchar’s legislation is an important first step in making certain that those who care for elderly parents or relatives, have the resources necessary to maintain the health and well-being of their families, advocates say.

“More and more family members are serving in the role as caregivers for their elderly family members, and those numbers will only grow as our baby boomer population ages. We applaud Senator Klobuchar’s continued leadership on programs that recognize and support family caregivers. We strongly support the AGE Act as it will help reduce the financial burden for adult children who help care for aging family members and provide education, support and respite to family caregivers,” said LeadingAge Minnesota President and CEO Gayle Kvenvold.

Klobuchar has been fighting to ensure that older Americans can live a life of dignity. She introduced the Seniors Fraud Prevention Act, with Senator Susan Collins (R-ME), which passed the Senate Commerce Committee earlier this month. The legislation would help fight scams aimed at stealing assets from the elderly and would educate the community about fraud schemes and improving the monitoring of, and response to, fraud complaints.

In October 2017, the bipartisan Court-Appointed Guardian Accountability and Senior Protection Act Klobuchar introduced with Senator John Cornyn (R-TX) was signed into law as part of the Elder Abuse Prevention and Prosecution Act. The law helps to thwart elder abuse, by bolstering oversight and accountability for guardians and conservators.

Reference: News 8000 (May 7, 2019) “Klobuchar Introduces Legislation to Provide Relief to Those Caring for Aging Relatives”

What Can I Do When My Aging Parent Refuses to Give Up Control?

“There are plenty of aging parents out there making life difficult for their adult children…”

It’s a common problem for families, when a parent in charge of finances develops cognitive impairment and needs help managing the family trust and his own spending. It can be financially dangerous with a stubborn parent.

Forbes’ recent article asks, “What Can You Do When A Stubborn Aging Parent Refuses To Give Up Control?” The article explains what it took one family to get an aging parent out of the position as trustee and to permit the successor, the adult daughter, to take over.

The family saw signs of dementia and a family member’s financial abuse.

The trust provided that the parent could be removed as trustee, if two physicians declared him to be incapacitated for handling his own finances. In that case, a judge’s decision wasn’t required. The doctors verified that the elderly parent was incapacitated to safely handle his money. However, all this takes time.

A parent’s failure to listen to reason and their stubborn refusal to resign as trustee when asked, can cost his children dearly. In that situation, a family may have to engage an attorney to resolve the problem.

Remember that even if your aging parents are fine, there’s no time like the present to ask them to review their estate planning documents with you. Look at the terms that define what happens in the event of “incapacity.” Be sure that all of you understand what would happen, if impaired parents are unwilling to give up financial control and you have to institute the proscribed process to remove control from them.

Those who are named in a trust as the “successor trustee,” must know what that means and how much responsibility is involved. The family needs to recognize that financial elder abuse is a huge problem in our country, and family members are frequently the abusers. If you see abuse, and your elderly parent can’t resist the pressure to give money to any dishonest person, an elder law attorney will be able to give you worthwhile advice on the best approach, as well as the law.

Lastly, in the event your aging parent never created an estate plan, work with an experienced estate planning attorney and ask your parent to get going for the family’s sake. You don’t want to live through the situation described above, with no legal means to stop an impaired parent from financial ruin.

Reference: Forbes (May 7, 2019) “What Can You Do When A Stubborn Aging Parent Refuses To Give Up Control?”

Should Elder Care Benefits Be Part of Employees’ Compensation?

“Our aging population has led to a rise in demand for elder care benefits. There are a variety of options that businesses can offer.”

As employees’ parents and family members grow older, many are asked to be caregivers. More than one in six Americans working full-time or part-time report assisting with the care of an elderly or disabled family member, relative or friend. Of this group, nearly 50% say they have no choice about taking on these responsibilities. That’s why many struggle in silence, deciding not to share their situation with employers out of fear for the impact on their career or a desire for privacy.

Benefits Pro reports in the article “Elder care benefits: A growing need for the U.S. workforce” that under the federal Family and Medical Leave Act (FMLA), “family leave for seriously ill family members” is required by law. However, the law offers unpaid job protection and the definition of family member is restricted to spouse, child or parent. This has resulted in an increase in demand for elder care benefits. There are a variety of options that businesses can offer.

Many employers now offer an employee assistance program (EAP), which provides employees and household members with educational and referral services for elder care. These services often include free and confidential assessments, short-term counseling, referrals and follow-up services. These EAPs also address a broad body of mental and emotional well-being issues, like alcohol and substance abuse, stress, grief, family problems and psychological disorders.

In addition, some employers also have Dependent Care Assistance Plans (DCAP), commonly referred to as the “day care benefit,” allowing employees to set aside tax-free dollars for qualified elder care. While DCAPs don’t cover the entire cost of elder care, they can provide up to $5,000 per calendar year in assistance and lessen employees’ federal tax burden.

Respite care provides short-term relief for primary caregivers and can be arranged for just an afternoon or for several days.

Caregiving has shown to reduce employee work productivity by 18.5% and increase the likelihood of employees leaving the workplace. Offering elder care benefits to employees can help with retention and efficiency, as well as with businesses’ bottom line. A study by the Center for American Progress found that turnover costs are often estimated to be 100 to 300% of the base salary of the replaced employee.

As the demand for these benefits continues to increase, employers are recognizing the diverse needs of their workforce and are creating programs that have benefits to help at all stages of life.

Reference: Benefits Pro (April 30, 2019) “Elder care benefits: A growing need for the U.S. workforce”

What’s Going on in Congress with Alzheimer’s Legislation?

“Bipartisan legislation that would amend the Older Americans Act to allow individuals aged less than 60 years, who have a diagnosis of younger-onset Alzheimer’s disease, to access the support programs of the act, was featured Tuesday at a hearing of the Senate Special Committee on Aging.”

McKnight’s Senior Living reports in the article “Bill would aid those with younger-onset Alzheimer’s disease” that Senate Bill 901, also known as the “Younger-Onset Alzheimer’s Disease Act,” was introduced in the Senate by Senator Susan Collins (R-ME), chairman of the committee, Senator Bob Casey, ranking member, and Senators Doug Jones (D-AL) and Shelley Moore Capito (R-WV). Representatives Kathleen Rice (D-NY), Pete King (R-NY), David Trone (D-MD), Elise Stefanik (R-NY), Maxine Waters (D-CA), and Chris Smith (R-NJ) introduced the bill as H.R. 1903 in the House of Representatives.

Nutritional programs, supportive services, transportation, legal services, elder-abuse prevention and caregiver support have been available through the OAA since 1965. However, under the current law, only individuals over 60 are eligible.

“These programs would make a huge difference in the lives of individuals living with younger-onset Alzheimer’s disease, who don’t have support services available to them,” said hearing witness Mary Dysart Hartt of Hampden, ME, a caregiver to her husband, Mike, who has young-onset Alzheimer’s.

About 200,000 individuals aged less than 65 have younger-onset Alzheimer’s disease, according to hearing witness Clay Jacobs, executive director of the Greater Pennsylvania Chapter of the Alzheimer’s Association, North Abington Township, PA.

“The need to reach everyone affected will grow significantly in the coming years,” he said.

Senator Collins was a founder and co-chair of the Congressional Task Force on Alzheimer’s Disease. She noted that she and Casey are leading this year’s OAA reauthorization efforts.

Senator Collins said she was also introducing the “Lifespan Respite Care Act” with Senator Tammy Baldwin (D-WI) Tuesday “to help communities and states provide respite care for families.” This legislation would earmark $20 million for fiscal year 2020, with funding increasing by $10 million annually to reach $60 million for fiscal year 2024. The program lets full-time caregivers take a temporary break from their responsibilities of caring for aging or disabled family members.

“Whenever I ask family caregivers, which included my own mother, about their greatest needs, the number one request that I hear is for more respite care,” Senator Collins said.

Reference: McKnight’s Senior Living (April 3, 2019) “Bill would aid those with younger-onset Alzheimer’s disease”

Are You Making a Long-Term Plan?

“Middle-income earners are more focused on planning their funerals than arranging for long-term care, a new study found.”

More than 10,000 people turn 65 in the U.S. every day. Almost 70% of people retiring today will need some type of long-term care during their lifetimes, according to the Department of Health and Human Services (DHHS). The cost of long-term care can be substantial—but even the most financially secure people are totally discounting the looming threat of long-term care in their retirement planning.

The Motley Fool’s recent article, “Baby Boomers Are More Prepared for Death Than Life,” says most baby boomers are either unprepared or haven't planned for a long-term care expense, according to a Bankers Life survey of 1,500 middle-income Americans aged 54 to 72. The results show that baby boomers were more likely to plan for their own death, than to have a long-term care plan. About 81% made some kind of funeral arrangements for when they pass away, but just 32% have a plan for how they’ll get care in retirement. The lack of long-term care planning is a significant issue, when you compound this with the harm that such a huge unexpected expense has on a person’s retirement savings, especially in cases where a nest egg is small to begin with.

DHHS believes that the average total cost of care for a retiree is $138,000. However, 79% of the respondents said they have set no money aside for their retirement care needs. For those who do have long-term care savings, the median amount saved is a mere $40,000. Nonetheless, 67% of those surveyed said they know someone who required care in retirement and 36% said they can't rely as much on friends or family for around-the-clock care. Given all these negative numbers, why aren't more boomers better prepared? The article gives us three surprising reasons that contribute to this lack of awareness and lack in savings for long-term care:

1. Overconfidence. Boomers may overestimate their ability to manage future long-term care costs. Three-fourths of those surveyed by Bankers Life said they were confident in their ability to handle future healthcare costs. A misplaced confidence could be why boomers used more effort and money to plan for their deaths. About half of the respondents had fewer than $5,000 saved in an emergency fund, and 33% had fewer than $1,000 set aside for emergencies. With the high cost of long-term care, and the collective weakness in emergency funds, boomers' confidence in being able to manage long-term care costs appears unrealistic. These people may be relying on Social Security benefits and Medicare too much.
2. Lack of basic Medicare understanding. Medicare covers only some long-term care expenses like skilled nursing care after a hospital stay, but there are limits. It also doesn’t pay for custodial or home healthcare. Most of those surveyed believe that Medicare will pay for a future healthcare event, and 56% mistakenly identified Medicare as a source to pay for future long-term care.
3. Not knowing where to get advice. The greatest obstacle to planning for care in retirement, is a lack of trust. About a third of boomers surveyed said they need and want advice, but don't know whom to trust. Most seek the help of a family member (36%), and just only 7% ask a health professional. A lack of trust or willingness to seek professional help may lead boomers to either put off a decision or perhaps not fully understanding their planning options.

The best use of a long-term care insurance policy may be folding it into a more comprehensive plan. Talk to an elder law attorney about what makes sense for your situation.

Reference: The Motley Fool (March 27, 2019) “Baby Boomers Are More Prepared for Death Than Life”

Why is TennCare Asking Seniors to Move Out of Their Homes?

“According to TennCare, since 2014, the number of estate recovery cases across the state has gone up 30 percent, while the amount of money recovered has more than doubled, jumping from just under $13 million to nearly $27 million.”

TennCare is the state of Tennessee’s program that covers medical care for the poor. It provides free care in many cases, but in some cases, it must be paid back. For example, Mary Musgrave lived in her home for many years, and at one point her daughter Lisa moved in to help take care of her. However, Lisa may be about to lose the home.

After Mary was in a car accident, she was forced to go on TennCare, after ending up in a nursing home. She lived there for five years, Musgrave explained to News Channel 5 Nashville in the article, “Daughter to lose home after mother's death due to money owed to TennCare for nursing home care.” She died in the nursing home, and afterwards, the family got a bill from TennCare for more than $171,000.

This is what's called an estate recovery. State law requires the government to collect what the TennCare program spends on long term care for anyone 55 and older, after they die.

TennCare isn’t a government benefit program. It's not a grant or a gift. Rather, it's a loan and the loan is required to be paid back after death. While estate recovery isn’t new, three years ago, the program dedicated more resources to it.  It has become more aggressive in pursuing its rights to recovery.

When Musgrave said she couldn't pay what was owed, she was informed by the program that she would have to sell Mary's home to come up with the money.

There are some situations in which TennCare will let a family stay in the house, such as when there's a surviving spouse, a child under 21, or a disabled child. Adult children are permitted to remain in the house, if they lived with the parent and helped care for them for at least two years before the parent moved into the nursing home. However, in this instance, TennCare says Musgrave did not meet the requirements.

TennCare spent more than a billion dollars on nursing home care in 2018, and the state says estate recovery is critical for the program to continue.

The best way to protect your house from estate recovery, is through estate planning. This should be done well before a parent or any individual requires nursing home care. Experts recommend at least five years. Be sure that you talk with an attorney who specializes in elder law.

Reference: News Channel 5 Nashville (March 18, 2019) “Daughter to lose home after mother's death due to money owed to TennCare for nursing home care”