William & Mary Elder Law Clinic

Serving Seniors in the Greater Peninsula Area

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Adults with Developmental Disabilities: Unique Aging Challenges

By Sarah Pitts, Elder Law Clinic Student, Fall 2015

Before I came to law school, I worked as direct care staff and day program staff for adults with developmental disabilities. It was one of the most challenging and rewarding jobs I have ever had. I learned to live and work with people who had various talents, interests, and abilities. I met one lady who lacked most of her fine motor skills but could tell me in a matter of seconds the day of the week that corresponded with any date past or future with perfect accuracy from memory. I took many trips to Logan Airport with another woman who enjoyed watching the planes take off and wonder where they were going. One of my clients loved to imitate the Three Stooges and had the most contagious laugh. I became very close to some of my clients, and I grew to care deeply about issues that concerned the folks I worked with.

Aging is an issue that affects us all, but it affects adults with developmental disabilities in distinct ways. The normal aging process is often compounded by reduced mobility, poorer general health, medications, surgeries, and other concerns. Those with developmental disabilities are at a higher risk of developing chronic health conditions at younger ages than other adults, owing to biological factors related to syndromes and associated disabilities. They may also have difficulty accessing adequate healthcare because of environmental and communication challenges. Additionally, as their close family members grow older, it may become harder to provide much needed care and support, either at home or in community living situations. The needs of adults with developmental disabilities tend to be unique to each person, and long-term care facilities are often ill-equipped to handle individual needs.

There is hope, however. People with developmental disabilities are living longer than ever before and have better access to health care than had past generations. Doctors and caregivers are learning more and more about how aging specifically effects this population, and they are increasingly aware of how medications interact. Because many individuals already qualify for Medicare and Medicaid, finances are usually not a problem for long term care.

Some pre-planning will further ease the aging process for individuals with developmental disabilities and their families and caregivers, including: (1) effective guardianship and a plan for what will occur when a guardian is unable to support their loved one; (2) preparing long-term care facilities for caring for adults with developmental disabilities; and (3) training families and caregivers regarding unique challenges facing the aging developmental disability population.

Too Much Power in a Power of Attorney: Challenges and Issues for the Elderly

By Kristel Tupja, Elder Law Clinic Student, Fall 2015

“Children can really hurt you sometimes.” I can feel the sadness and emotion emanating from our potential Clinic client.  The woman reached out to us to discuss the contents of a Power of Attorney she granted to her son.  Spiraling into depression after simultaneously losing her job, her house and filing for bankruptcy, the woman saw it best to grant her son Power of Attorney to help her during this trying time.  But help soon turned into harm, as her son began threatening his mother that he would march to her bank and withdraw the money on her behalf.

Rising above her turmoil, our potential client decided to take charge of her life once more.  She asked us to make sure the Power of Attorney was still in her best interest.  What rights had she granted to her son?  Can he really march to the bank now that she is better and take out money on her behalf?  She needed him to help her with her finances when she was in dark place, but her recovery prompted her to become quite diligent with her finances.  Can the son still maintain this Power of Attorney?

The potential client had granted her son the power to do virtually anything and now was conflicted; her relationship with her son was already strained but she feared that it could get worse if he found out that she wanted to revise or revoke her Power of Attorney. The important fact in these kinds of cases is that a Power of Attorney should be granted to someone you can really trust.  Nonetheless, when drafting a Power of Attorney, it is best to be thorough and cognizant of what powers you are granting away, regardless of who you are granting them to.  Further, drafting a “Springing Power of Attorney” that is only valid during times of incapacitation could avoid situations like these.

What I have gathered from the Clinic experience is that the answers are not always black and white.  There isn’t always a clear solution to a situation as sensitive as a contract with someone you love and have cared for throughout your entire life.  In an effort to help clients like this one, the student attorneys work together to come up with different options, all the while keeping the client’s best interests in mind.  The answers might not always be the easiest to understand or come to terms with.  Oftentimes, we are called to think as counselors and attorneys at the same time.  But what ultimately matters, above all, is that the client is presented with the options that will allow him or her to make a decision that is in their best interest.

Easy Targets: Seniors Are More Susceptible to Various Fraudulent Schemes

By Amy Meiburg, Elder Law Clinic Student, Fall 2015

Working for the SEC this past summer, I became more aware of the challenges that are increasingly facing senior Americans – fraud. Americans over the age of sixty-five (65) now hold a vast majority of wealth in our economy. Further, these individuals are frequently targeted by unscrupulous individuals for a variety of schemes. Seniors are susceptible for many reasons: lack of understanding of new technologies, inability to recognize untrustworthy facial cues (NPR), financial investing history (id.), landline phones which can be contacted by telemarketers, and various other reasons.
Knowing that seniors are less likely to be discerning when it comes to investing or diligence in determining the worthiness of junk mail, perpetrators of fraud target seniors for various schemes. One such scheme is the door-to-door magazine salesmen. For this scheme, the schemer approaches the target with a story about selling magazines for some charity, finagles payment for a magazine order, then absconds with the cash.

This is a minor theft compared to the amounts that fraudsters can inveigle. This summer I attended an SEC hearing in the Colorado District Court where an interested party was allowed to speak regarding the alleged fraud. This senior invested more than $10,000 in “the Matrix,” buying squares which were guaranteed to return 600%. Further, she reported and paid taxes on the income when the schemers sent her a 1099 without ever having paid her any of the funds. This is just one example of what can and does happen to seniors across the country.

In addition to being the target of fraud, which can potentially decimate a life savings, seniors can also become involved in fraudulent schemes where they are complicit in the scheme itself without even knowing it. For example, I worked with a senior this summer who sold fraudulent securities and settled with the Commission for over $100,000 dollars. At 87, this individual had already declared bankruptcy, lost his home, and spent thousands on medical expenses for his terminal cancer. All of this factored into his becoming embroiled in a scheme to defraud investors. He claimed that he was tricked into selling fraudulent securities. Whether or not his claims were true, he is an example of what can happen to seniors who are less likely to question schemes that seem too good to be true.

The only way to help seniors avoid being the target of fraud is to call attention to the problem and continue to educate both those seniors and their families. There are many ways this are done. Many news organizations are calling attention to this problem, and seniors’ assistance organizations across the country have educational programs for seniors to help them recognize potential fraud. Although these are both excellent ways to start the process of protecting seniors, much more needs to be done. These despicable actors prey on those who need the most protection, and we as a society need to further our involvement in their protection.
NPR, Why It’s Easier to Scam the Elderly, http://www.npr.org/sections/health-shots/2012/12/06/166609270/why-its-easier-to-scam-the-elderly

The Importance Of Recognizing A Legal Issue

By Fred Freeman, Elder Law Clinic Student, Spring 2015

During the summer of 2014, I worked for the City Attorney’s Office in Norfolk, Virginia.  While there, I spent a lot of time in the Juvenile and Domestic Relations Court, spending a significant portion of my summer researching and dealing with cases involving guardianships and abuse of adolescents.  However, I never had any contact with the juvenile clients we were representing, outside of sometimes seeing them sit in front of a judge.  Since joining the Elder Law Clinic, I have been assigned two possible cases of elder abuse, and I now realize how many issues lawyers actually face when dealing with abuse claims.

Unfortunately, as a current student in the Elder Law Clinic, and as a future lawyer, I know that not every case that comes across my desk can be accepted.  This does not mean that some cases won’t tug at the heartstrings.  Recently, I met with a woman who has faced possible mistreatment at the hands of her landlord, including claims of verbal and financial abuse.  However, her claims are mostly based upon her statements alone, and there is not much we can do for her besides try and get her out of her lease agreement.  I also had a client who claimed his daughter might be stealing from him, but his Alzheimer’s raises issues regarding the validity of his statements.  After meeting with both of these prospective clients, my first instinct was to do everything I could to help them reach their happy endings, but this isn’t always possible.

In the end there wasn’t much to be done for either of them.  There was both a lack of evidence and a real legal precedent to pursue action.  When I worked for the City Attorney, all the cases I dealt with had already begun, with evidence of abuse, and the necessity of legal action already proven inside and outside of court.  I never had to face the possibility of a potential client who may be suffering, yet has no real recourse.  During my experience with the Elder Law Clinic, I have discovered the importance of laying the foundation for a case.  The potential clients I mentioned earlier may not be able to find a solution to their problems without showing more to support their claims.  Hopefully we will be able to support them both in laying a foundation for, and carrying out a plan to help them achieve their goals.

My experience at the Elder Law clinic has taught me to always search for the issue for which I can provide assistance.  Getting caught up in the turmoil of emotions and troubles that your client has may end up clouding the actual problem, and lead to ineffective counsel.  It is important to remember that without a legal issue to pursue, we may be left powerless to help those who really need it, and the Elder Law Clinic strives to find these issues in every potential case.

The Signs, Symptoms and Preventative Measures of Financial Abuse of the Elderly

By Jessica Colton, Elder Law Clinic Student, Spring 2015

It is 3:00 a.m. and an elderly widow is woken by a ringing phone.  Answering,  a man on the other end poses as Canadian law enforcement and claims to have her grandson in police custody.  Telling the drowsy, confused woman that her grandson’s health is in danger, he instructs her to wire $5,000 to the police station for bail. The caller uses the grandson’s first-name and, with great urgency, explains that her grandson’s parents cannot be reached and the situation is dire.  Scared and confused, the elderly grandmother wires the money, while her grandson quietly sleeps in his college dorm room, safe and sound in the United States.  Contacting her son in the morning, the elderly woman learns she has been conned.  Local police cannot trace either the phone number or the account.  The money is gone.

The elderly are frequently the targets of financial scams perpetrated by strangers descending upon their diminished mental capacity and savings via fake charities, investments, home repairs, and even phone scams claiming a family member is in trouble.  Especially susceptible to financial abuse are elderly individuals recently widowed whose deceased spouse previously handled the couple’s finances.  Common are credit scams in which the elderly person, unaware of his or her debts, is persuaded into paying money to a sham company threatening to repossess a car, home, or other valuable asset.  Scammers specifically target elderly widows and widowers by perusing public obituaries that list the elderly individual as a surviving spouse.  Also very attractive to a would-be scammer is a widow or widower who does not have local family, or even any family at all, to care for his or her well-being.

Even more disturbing, financial abuse of the elderly is often committed much closer to home, by the older individual’s family, neighbors, or trusted professionals.  Financial abuse can also be tricky to spot, as it can take many forms.  Fortunately, prudent caregivers and relatives can short-stop financial harm to elderly loved ones by remaining alert for signs and symptoms of financial abuse. As an example, one might take notice that an elderly person’s living conditions are far below his or her financial means, such as going without utilities like cable or heat when funds should be ample to cover basic living expenses.  To a watchful relative or neighbor, this might raise a red flag that funds are being diverted elsewhere and not to the elderly individual’s benefit.  Other indicators of financial abuse include unusual bank activity, such as the taking out of large, unexplained loans, large or frequent gifts made by check or cash to a caregiver, relative, or financial professional, or missing personal belongings of some value.  Attentive relatives will also take notice if an elderly individual seems distant or has lost interest in family activities.  Caregivers or relatives seeking to financially manipulate an elderly individual will often try to isolate the older person from friends and family.  These abusers will manipulate the elderly into holding negative beliefs about family members based on lies or exaggerations, while simultaneously creating positive associations for themselves as saviors with pure intentions or as sympathetic victims in need of financial help.

 

A Fresh Take on Clinic Cases: How W&M’s Elder Law Clinic is Taking on New and Challenging Cases While Providing Students With a Meaningful Learning Experience

By Ann Cortez, Elder Law Clinic Student, Spring 2015

Established in 2012, the William & Mary Law School Elder Law Clinic has worked hard to address the many needs of the elderly community in Hampton Roads. The practice of elder law is multi-faceted and within its purview the clinic has covered many legal issues including Medicaid application, elder abuse, the drafting of wills, the establishment of guardianship, and more. This expansive scope allows the Clinic to serve the community in a manner that addresses their most pressing needs. Through this work, many Clinic students have had the opportunity to help clients overcome various often time complex legal issues.

This semester, the Clinic has had the opportunity to expand its scope slightly due to a few select cases that have sought out the Clinic’s assistance.  Though all cases are in some vein related to the key legal issues that the Clinic focuses on, these cases have given the Clinic the opportunity to explore new legal issues in a manner that may open the door for similar cases in the future.

First, the Clinic has had the opportunity to work on a restoration case. Typically, the Clinic has focused on cases that focus on the appointing of guardianship and conservatorship over individuals, which effectively transfers the rights of that individual to an alternative party. This is often time used when the Court finds that the individual is unable to make decisions for and provide for him or herself in a healthy manner. Restoration, on the other hand, undoes the process of guardianship and restores the rights of the individual should the Court find them competent.

Second, the Clinic is currently exploring the opportunity of working on a probate case in which the Clinic would challenge the execution of a will. While this is of the same vein of drafting client wills and estate planning, this would be an expansion from the Clinic’s typical services as this may involve a more litigation based approach.

These creative cases speak to the accessibility and experience that the clinic has manifested over the last few years. As always, the Clinic continues to provide trustworthy and important legal services to their clients, and these cases are an exciting development in the Clinic’s achievement of its mission to serve the greater community

Are You Your Father’s (or Mother’s) Keeper in Virginia?

By Caleb Stone, Elder Law Clinic Student, Spring 2015

Most people know that every state imposes a legal obligation upon parents to provide for their children; however, many Americans would be surprised to find out that their states also have statutes mandating that adult children take care of their indigent parents. The laws are often called “filial duties,” are on the books in at least 25 states.[1] The majority of these filial laws are civil obligations, but 12 states impose criminal penalties for the failure to comply.[2] These laws, though not commonly-known, have a long history that can be traced back to 16th Century England, where they were part of an effort to combat widespread poverty.[3]

Today’s America, while very different from 16th Century England, has a major problem: a booming aging population with not enough financial resources to completely support themselves. The current average lifespan in the United States is nearly 79 years old,[4] up from approximately 49 years old in 1902.[5] Some commentators point out that these demographics could lead more government officials to enforce the filial laws already on the books.[6] Indeed, looking internationally, China recently passed laws imposing this legal burden upon its citizens, citing in part the long-term strain the elderly would place on their social welfare system.[7] Filial laws have garnered more academic discussion in recent years,[8] especially after a Pennsylvania court in 2012 used filial laws to hold a man responsible for his parents’ $92,000 medical bill.[9]

Virginia does have such a filial law, but it seems to be more lenient than Pennsylvania’s. The pertinent statute does state that “[it is] the duty of all persons . . . of sufficient earning capacity or income, after reasonably providing for his or her own immediate family, to assist in providing for the support and maintenance of his or her mother or father . . . .”[10] Research, however, indicates that this statute has not been used to hold an adult child financially liable since 1978.[11] Unusually, the statute does not apply if there is “substantial evidence of desertion, neglect, abuse, or willful failure to support any such child” or “if a parent is otherwise eligible for and is receiving public assistance or services under a federal or state program.”[12] So, while it does not seem that Virginia is going to start enforcing this statute anytime soon, Virginia residents with elderly parents should understand the possibility that their moral obligations could, in theory, be enforced by the coercive power of the courts.

[1] Donna Harkness, What Are Families for? Re-Evaluating Return to Filial Responsibility Laws, 21 Elder L.J. 305, 321 (2014).

[2] Id.

[3] Keli Goff, Are You Legally Responsible for Your Elderly Parents?, The Daily Beast (Apr. 26, 2014), http://www.thedailybeast.com/articles/2014/04/26/are-you-legally-responsible-for-your-elderly-parents.html.

[4] Life Expectancy FastStats, CDC, http://www.cdc.gov/nchs/fastats/life-expectancy.htm (last visited Mar. 20, 2015).

[5] Laura B. Shrestha, Cong Research Serv., RL32792, Life Expectancy in the United States 3 (2005), available at http://www.cnie.org/nle/crsreports/05mar/RL32792.pdf.

[6] Goff, supra note 3. But see Matthew Pakula, The Legal Responsibility of Adult Children to Care for Indigent Parents, Nat’l Ctr. for Policy Analysis (July 12, 2005), http://www.ncpa.org/pdfs/ba521.pdf (stating that filial laws will continue to be rarely enforced because federal law prevents states from considering the financial responsibility of non-spouses when determining eligibility for Medicaid or other poverty programs).

[7] See Edward Wong, A Chinese Virtue Is Now the Law, N.Y. Times, July 3, 2013, at A4, available at http://www.nytimes.com/2013/07/03/world/asia/filial-piety-once-a-virtue-in-china-is-now-the-law.html.

[8] Harkness, supra note 1, at 321.

[9] Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719 (2012).

[10] Va. Code Ann. § 20-88 (2014).

[11] See Peyton v. Peyton, 8 Va. Cir. 531 (1978)

[12] Va. Code Ann. § 20-88 (2014); see also Patrick C. Murphrey, Picking up the Tab for Mom & Dad: A Look at Filial Responsibility Laws in 2011, Fam. L. News (Va. Bar Ass’n), Summer 2011, at 3, available at http://www.vsb.org/docs/sections/family/summernews2011.pdf.

Students & Clients Working Together: The Importance of Open and Complete Communication

By Kaitlyn Chounet, Elder Law Clinic Student, Spring 2015

This past summer, I worked for a county law department, and while I spent a great deal of time working on important aspects of the department’s cases such as researching and drafting motions and memoranda, because the law department represents the county, I never really had the opportunity to work with a client—a real, live person. So, when I joined the Elder Law Clinic, it was my first opportunity to work with people on issues that directly impacted their lives, and I was not really sure how, or if, it would be any different. Now, having worked with clients even for just a few short weeks, I have found that there is at least one substantial difference that I think both us, as student lawyers (and actual lawyers), as well as the clients of the Elder Law Clinic need to understand. That difference is the importance of communication between clients and lawyers.

In Professional Responsibility, we learn that the attorney-client relationship depends on the client making decisions concerning the objectives of the representation and the lawyer making decisions about tactics or how those objectives are ultimately achieved. But what ultimately lies beneath those roles is the importance of communication between the client and lawyer. But that communication is not simply filling out the client information worksheet and sending it back, and it is not just telling the client what the law is or what we need from him. To be conducive to meeting the client’s needs, communication has to be open and complete from both parties. When communication is not as open and complete as it should be, the entire process is slowed and unnecessary difficulties may arise.

We should always ask if what we have said is understood by the client, and we should encourage questions from our clients because their understanding is the only way to ensure open and complete communication from us to them and from them to us. Clients coming to the Elder Law Clinic understand that, as student lawyers, we are not perfect. Sometimes we think we have been effectively communicative when we have not been clear at all, and sometimes we may not think to ask probing follow up questions, so clients should always tell us when they do not understand something and also consider providing more information than they think we may need. Clients should also see the importance of providing the documentation and information we do ask for, even if it is something the client may rather not share. We would not ask for it if we did not need it.  As student lawyers, however, we should also take care to explain why we need something in order to help put clients at ease and help them understand its importance. Ultimately, if clients and clinic students both work to be more open, honest, and complete in their communication, the Elder Law Clinic will be able to much more efficiently and effectively meet the needs of its clients, which in the end, is what we all really want.

First Contact

By Karen Osborne, Elder Law Clinic Student, Spring 2015

When a student enrolls in her first clinic at the law school, the emotions range from excitement to trepidation. The areas of legal practice are completely new and the learning curve is steep, but the real anxiety sets in when the student realizes she will have to handle cases independently (with her teammate) and from the very beginning. The professor oversees all work, but may not always be present at client meetings. This independence is empowering, but also intimidating, especially before that first interview.

As my partner and I went to our first client interview, which happened to be at the potential client’s home, we were twenty minutes early. We had left early for fear of becoming lost and being late. We definitely did not want to be late!

Once inside, the family was very welcoming. The house was comfortable and well kept. The matriarch led us to the dining room where we could easily talk with her and other family members. Though the interview was formal, it was also friendly. The prospective clients were quite patient with us, which made asking probing questions easier. Though they knew we were only students, they seemed comfortable giving very personal details of their lives and finances. I was grateful for their relaxed demeanor because it allowed me to be at ease as well. Within a half hour, we had all the information we needed to determine that the Clinic was well-equipped to help them and that they qualified for our assistance.

This first client contact was not only a good learning opportunity, but also an enjoyable experience. It is a wonderful thing to be able to help others in need while putting all the skills we have been learning at school to practice in the pleasant environment created by the Elder Law Clinic.

Current Clinic Students

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The current Fall 2014 clinic students including Professor Mock standing for a picture on a normal case rounds Wednesday.

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