San Diego Elder Law and Estate Planning

Time to Review Your Estate Plan and Other Tips

2012-01-31T15:56:00.000-08:00

The beginning of a new year is an excellent time to review your existing estate planning documents and think about whether you need to update them in light of changes in your personal or financial circumstances, or in light of recent tax law changes. It is generally advised that you review your estate planning documents every 3-5 years, or sooner if any of the following events have occurred:

Death of a family member, beneficiary, or fiduciary named in your documents

Birth/addition to the family

Incapacity or serious illness of a family member, beneficiary, or fiduciary

Divorce or separation

Retirement

Inheritance

Loss of job or income

Change in business ownership

Other substantial change in your finances

Make Sure You Provide Safe Deposit Box Information

Many people keep their valuable documents, including their original estate planning documents, in their safe deposit box. Does your successor trustee of your trust or executor of your will know where your safe deposit box is located? Have you given your successor trustee or executor the key to the box and added them to the signature card to be able to access the box in the event you pass away or are incapacitated? It is advisable to keep your Advance Health Care Directive in an accessible place other than a safe deposit box in the event of a medical emergency, because an emergency may arise when the bank is closed.

Make Sure You Provide Passwords and Log-in Information for Electronic Accounts

More people are switching to online banking and investing online, and fewer people are opting to have statements mailed to them. If you were to pass away or become incapacitated, would your successor trustee or executor know how to access your online account? Would they even have access to your e-mail to check for statements as they come in? It is important to make sure your successor trustee or executor have access to your e-mail and any online retirement benefit, bank, mutual fund, stock, or other investment accounts. Give them a list of your accounts, login names and passwords.

Experienced Estate Planning Attorney in San Diego

The Casiano Law Firm offers experienced assistance with estate planning for clients throughout the San Diego area. Call or e-mail us for assistance in preparing wills, trusts, powers of attorney or advance health care directives, or for representation in probate or trust administration.

Estate Tax Planning for 2011, 2012, and Beyond

2011-12-29T15:42:00.000-08:00

As we enter 2012, time is running out to make all of your gifting, planning, and other tax-related decisions which will impact tax year 2011. With the start of the new year, it is also time to consider planning for the 2012 tax year. There is a sunset on the horizon, but it is not as pretty to look at as most. It is the sunset of the "Bush tax cuts," which were extended through 2012 by legislation in 2010. What lies beyond 2012 is too far beyond the horizon to see just yet, and much depends on how Congress deals with the impending change, assuming Congress deals with it at all.

Estate and Gift Tax Exemption

For 2011 and 2012, a $5 million exemption from estate and gift taxes is in place. This unified tax credit is per person, so proper planning between married couples can create an effective $10 million exemption. Estates above the exempted amount are taxed at a 35% top rate. If nothing changes, however, for 2013 and thereafter, the exemption would drop to $1 million, with a top tax rate of 55% for amounts above the exemption.

Will Congress continue the current exemption beyond 2012, or allow it to drop to the $1 million level of a decade ago? Will Congress eliminate the estate tax altogether, as it briefly accomplished for 2010, or will some compromise figure be reached, such as a $3.5 million exemption with a 45% tax rate? It may be too early to tell, but it is not too early to plan. If your estate lies between $1 million and $10 million in value, it may be wise to consider reducing the size of your taxable estate through charitable giving, the establishment of trusts, and other available mechanisms. Schedule some time to talk over your estate plan with a knowledgeable and experienced estate planning attorney, who can advise and assist you with immediate and long-term planning. In San Diego, contact the Casiano Law Firm for assistance.

Conflicting Wills Result in Challenge to Estate of Reclusive Heiress

2011-11-29T22:28:00.000-08:00

In past blog entries we have noted that the elderly are especially susceptible to fraud, coercion, undue influence or duress, causing them to create or change their will or trust to name an abuser as a beneficiary.

Heiress Creates Two Conflicting Wills within Six Weeks

This week’s headlines have chronicled recent court filings in the death of reclusive heiress Huguette Clark, who passed away in May at the age of 104, leaving behind an estimated fortune of $400 million. Court filings disclose that Ms. Clark signed two wills, one on March 7, 2005 leaving the bulk of her fortune to her 21 relatives, and another on April 19, 2005, disinheriting her family entirely. In her second will, Ms. Clark noted that she was intentionally making no provision for any members of her family, having had only “minimal contact” with them over the years. Family members dispute this statement, and claim that the wills were executed around the same time that Ms. Clark’s attorney cut off their contact with Ms. Clark. The family members have filed a will contest, challenging the second will based on a number of grounds, including:

Lack of testamentary capacity;

Fraud;

Undue influence; and

Elder abuse.

The litigation over Ms. Clark’s estate is expected to be expensive, lengthy and contentious. Important questions surround the six week period during which Ms. Clark’s estate planning intentions changed so dramatically. Did her attorney or her accountant, who are named in the will as co-executors, exert undue influence over her? Did Ms. Clark understand the provisions of her will and what she was signing? Will the judge allow her accountant, a convicted felon, to serve as an executor? Will the judge allow her attorney, whose family has benefitted from nearly $2 million in gifts from Ms. Clark, to serve as an executor? How close was Ms. Clark to her relatives? These are all questions that will need to be answered over the course of the litigation.

San Diego Probate, Trust & Estate Litigation Attorney

San Diego attorney Vincent Casiano has significant experience in probate and trust litigation, including will contests, trust contests, and cases involving financial elder abuse. If you suspect that a loved one was coerced into changing their will or trust as a result of influence by an abuser, contact the Casiano Law Firm for experienced advice and representation.

Removing Assets From the Probate Estate

2011-10-31T16:22:00.000-07:00

Probate is the court-supervised process used to determine whether a will is valid and to distribute the property of the estate according to the terms of the will or state laws of intestate succession for property not otherwise disposed of by will, trust, or other testamentary instruments. While court supervision is sometimes necessary, such as when there is a challenge to a will, a complaint about the executor or administrator of the estate, or other dispute among the intended heirs or beneficiaries, probate is generally a process to be minimized or avoided altogether if possible. This is because probate can take a long time to complete while the process winds its way through the legal system, while the cost of probate is taken out of the estate, reducing the value of the estate that would otherwise be distributed to intended heirs and beneficiaries.

In California, probate can be avoided altogether if the value of the estate is less than $100,000. Even if you have a larger estate, there are many ways to convert your property to non-probated assets, which will reduce the size of your estate for probate purposes. Below are some of the most popular instruments and vehicles used for removing assets from the probate estate:

Revocable Living Trusts - Assets properly placed in a living trust do not need to be probated. Living trusts have many other benefits as well, such as certain tax advantages, avoiding conservatorship of your assets, and generating income during your lifetime.

Jointly-Titled Property - When property is titled in the names of two people jointly, title to the property passes to the surviving spouse or other named party upon the passing of the other party. This could apply to your house, car, or any other investment property. There may be other reasons not to place the property in joint title; discuss this issue with attorney before making any major changes.

Insurance Policies, 401(k) plans - Any type of insurance policy or retirement plan that has a named beneficiary can automatically transfer the benefit to the beneficiary or beneficiaries upon death, without having to go through probate.

These are just some of the ways you can minimize or avoid probate of your estate. When forming or revising your estate plan, raise the issue of probate with your estate planning attorney to discuss the mechanisms which will work best with your overall estate plan. In San Diego and Southern California, contact the Casiano Law Firm to speak with an experienced estate planning and probate attorney.

Tony Curtis Estate Dispute: Children Allege Undue Influence, Duress, Fraud

2011-09-29T15:26:00.000-07:00

Few disputes have the potential to be as emotionally-charged and contentious as trust and estate disputes, especially those pitting the children from the decedent’s prior marriage against a stepparent. When actor Tony Curtis died in September of last year, following years of poor health, he left behind an estate plan that completely disinherited his five children. In his will dated in May of last year, just months before his death, the actor named each of his five children-including actress Jamie Lee Curtis-and specifically and intentionally disinherited each of them. No explanation was given in the will. The will left the actor’s entire estate to his widow and fifth wife, Jill Vandenberg Curtis, with a small portion of the estate going to the couple’s charity.

Lawsuit Filed Contesting their Father’s Will

The actor’s daughter, Kelly, has filed a lawsuit alleging that their father was the victim of “duress, menace, fraud or undue influence” by his widow, Jill, which resulted in his changing the dispositive provisions of his estate plan just prior to his death. Kelly contends that she and her siblings were completely blindsided by the disinheritance and that their father would never have eliminated them entirely from his estate plan.

Auction of Personal Items Yields Over One Million Dollars

Earlier this month Tony Curtis’ personal effects were sold by his widow in an online auction which yielded over $1 million. Over 500 items were sold, ranging from cars to personal letters. The actor’s children were upset by the auction as they were not offered any personal effects from his estate, not even a personal item to remember their father by. In accordance with the terms of his will, the auction proceeds went to his widow, with a small portion to the couple’s charity. The auction served to only raise the ire of the actor’s children even further, and they were vocal about their displeasure in the media.

Families Feud When Children Disinherited in Favor of Subsequent Spouse

Whenever an estate plan completely disinherits children in favor of a subsequent spouse, a trust and estate dispute is likely to follow. In this case, the disparity in the age of Jill and Tony hasn’t helped matters-Jill is 42 years younger than Tony, and 11 years younger than Tony’s oldest daughter, Kelly.

Regardless of the size of the estate, estate planning involving blended families or children from previous marriages involves additional complexity and concerns. It is important to consult with an experienced estate planning attorney to ensure that your wishes are properly carried out, with minimal exposure to potential litigation. For experienced estate planning assistance in the San Diego area, contact the Casiano Law Firm.

Challenges to Estate Planning Documents and Elder Abuse Litigation

2011-08-31T13:09:00.000-07:00

In last month’s blog entry we discussed the requirements for a valid California will and some of the potential grounds for challenging a will, including allegations of:

Lack of testamentary capacity

Fraud

Undue influence

Duress

Improper execution of the will

Elder abuse

Financial Elder Abuse Litigation

Unfortunately the elderly are particularly vulnerable to fraud, coercion, undue influence and duress, often because of Alzheimer’s or dementia, or due to loneliness or isolation from friends and relatives. Many of our elders are being robbed of their hard earned savings by strangers, personal or financial advisors, caregivers or even family members. Many seniors have been coerced into creating or changing wills or trusts to name the abuser as the beneficiary, or changing beneficiary designations on life insurance or retirement benefit accounts to name the abuser as the beneficiary.

California has seen an exponential increase in the number of lawsuits filed alleging financial elder abuse, partly because of our growing population of seniors, and partly due to increased awareness and enhanced protection of elders due to changes in the law.

California Laws Protecting Elders from Financial Abuse

California law has been expanding protections for the finances of our senior citizens by broadening the definition of financial abuse and making it easier for victims to bring lawsuits and prove their case. California law defines financial elder abuse as the taking, appropriating or retaining the real or personal property of an elder for a wrongful use or with intent to defraud, or both. California law requires banks and other financial institutions to report suspicious conduct which may constitute financial elder abuse since bank personnel and financial brokers are often in the best position to notice the signs of financial elder abuse.

San Diego Probate, Trust & Estate Litigation
San Diego attorney Vincent Casiano has significant experience in financial elder abuse cases as well as probate and trust litigation arising out of financial elder abuse. the Casiano Law Firm for experienced advice and representation.

Rules for Valid Wills Create Traps for the Unwary

2011-07-29T15:02:00.000-07:00

California's statute of wills contains several requirements that must be followed in order for a will to be valid. An invalid will could cause the estate to be probated according to the laws of intestate succession, where the wishes of the will-maker (the testator) are completely ignored, and the estate is distributed according to preset statutory rules.

Requirements for a Valid Will

In order to be competent to make a will, a testator must be 18 years old and of sound mind, possessing the necessary testamentary capacity to make a will. This means that the person must understand what it means to make a will, must appreciate the extent of his or her estate, and must know the family members and other persons whose interests will be affected by the making of the will.

The will must be in writing (i.e., typed or printed) and either signed by the testator or by another at the testator's direction. There must be two witnesses together at the same time to also sign the will, attesting that they witnessed the testator's signature or the testator's acknowledgement that the signature on the will belongs to him or her.

Numerous Ways to Challenge a Will

A will can be challenged (contested) in any number of ways. One may allege that any of the procedures outlined above were not followed properly, or that the testator lacked the testamentary capacity to make a will. Even a will that meets all the above requirements is invalid if it can be shown that the testator signed the will under duress or by virtue of fraud or undue influence. When more than one will is produced, difficulties arise as to which will should be accepted and admitted into probate. A will contest can cause drawn-out litigation where legal battles are fought over complicated factual and legal issues.

Always Seek Professional Assistance

As a lawyer who practices both estate planning and probate litigation, Vin Casiano knows that the best defense is a good offense, and the best way to keep a will safe from contests is to make sure that it is prepared correctly in the first place. Always seek the assistance of an experienced estate planning attorney to make sure your will is prepared with the care and skill required to be valid under California law and to withstand any legal challenges. In San Diego and Southern California, contact the Casiano Law Firm for sound legal advice and high-quality professional assistance.

The Importance of Funding Your Trust & Periodically Reviewing Your Estate Plan

2011-06-30T15:17:00.001-07:00

You signed your estate planning documents and placed the original documents in a safe place. You're done with your estate plan, right? Not quite…you'll want to ensure that if you've created a trust as part of your estate plan, that your trust has been properly funded with the appropriate assets. You'll also want to periodically review your estate plan to make sure it still comports with your wishes and that it takes into consideration changes that may occur in your personal or financial situation.

Funding Your Trust

Your trust will control the distribution of those assets which are held in the name of the trust. Title to your assets must be properly transferred to your trust in order to avoid probate. If an asset is not transferred into the trust, a probate proceeding may be required. Transferring real estate to a trust involves preparing a deed and accompanying documents transferring title to the trust. Some assets, such as life insurance policies and retirement benefit accounts, are contractual in nature and controlled by beneficiary designations. Careful coordination of beneficiary designations is required to make sure these assets will be distributed as you intended.

Events Triggering the Need to Review Your Estate Plan

There are many changes in your personal or financial circumstances that could have an impact on your estate plan. A few examples include:

A change in your marital status (marriage, separation, or divorce)
Death or incapacity of a fiduciary or beneficiary named in your documents
A change in your health condition
Retirement or job loss
Receiving a substantial inheritance

San Diego Estate Planning, Probate and Trust Administration
Thank you for reading our blog. If you have any questions regarding estate planning, or need assistance with the administration of a trust or estate, contact the Casiano Law Firm for experienced advice and representation.

Important But Overlooked Property Tax Exemptions

2011-05-31T14:38:00.000-07:00

In last month’s blog entry, we discussed how property taxes are an important, and often overlooked, consideration in estate planning and estate administration in California. Many people don’t realize there’s a problem until they receive a large property tax bill indicating that their property has been reassessed for property tax purposes. In last month’s blog entry we discussed how property taxes work and why you should not transfer any interest in your real property without consulting an attorney first. Here are some of the questions we commonly receive regarding property taxes and the administration of an estate:

Will a property be reassessed upon the death of the owner?

Yes. Under California law, death of the owner is considered a change in ownership and the property can be reassessed as of the date of death for property tax purposes.

What about if the property was held in a trust? Is it still subject to reassessment?

Yes. A change in ownership occurs upon the date of death of the owner of the property, also referred to as the trustor, or lifetime beneficiary of the trust. The change in ownership and, if applicable, the date of reassessment, is the date of death the property owner, not the date of distribution to the successor beneficiary of the trust.

Will the property be reassessed if it passes to the decedent’s children?

Yes. However, if all or some of the property is passing to the decedent’s child(ren), the decedent’s child(ren) may qualify for a reassessment exclusion. In order to qualify, a Claim for Reassessment Exclusion Between Parent and Child must be filed with the Assessor’s Office within three years after the date of transfer, or prior to transfer to a third party, whichever is earlier, or within 6 months after the mailing of the notice of supplemental or escape assessment.

If the above time requirements have expired, and the property has not been transferred to a third party, a claim can still be filed, however, the exclusion will only apply to future tax years.

What about property passing to a grandchild?
Property passing to a grandchild may be exempt from reassessment if all the parents of the grandchild that qualify as a child of the deceased property owner are deceased. A Claim for Reassessment Exclusion Between Grandparent and Grandchild must be filed with the Assessor’s Office in a timely manner in order to qualify for reassessment exclusion.

San Diego Estate Planning, Probate and Trust Administration
If you have any questions regarding property tax reassessment, or need assistance with the administration of a trust or estate, contact the Casiano Law Firm for experienced advice and representation.

Property Tax Considerations in Estate Planning

2011-04-29T11:49:00.000-07:00

Property taxes are an important, and often overlooked, consideration in estate planning and estate administration, particularly in the State of California. Many people focus on federal estate tax considerations, with perhaps some concern for gift, generation-skipping transfer and income tax consequences. It isn’t until a client receives a large property tax bill indicating that their property has been reassessed for property tax purposes that it becomes apparent that there is a problem.

How California Property Taxes Work

In California, annual property taxes are calculated as a percentage of a real property's assessed value. Assessors may increase a real property's assessed value by only 2% each year unless there is a “change in ownership”. This has worked in favor of property owners because historically, real property values have increased at a rate greater than 2% per year.

When a “change in ownership” occurs, it triggers a property tax reassessment, and allows the County Assessor to adjust the assessed value of the real property to the current fair market value. The “change in ownership” rules are very complex and confusing. Property owners often inadvertently trigger a reassessment, which can cause significant increases in property taxes each and every year thereafter. This is one reason why you should never attempt to transfer an interest in real estate without first consulting an attorney – such a transfer could lead to a significant increase in property taxes, not to mention other problems.

Beware of Property Tax Issues in Business Succession Planning

If you own a business and have real property titled in the name of your business, you must be even more careful. A transfer of even a small interest in a business, even 1%, can trigger a reassessment of all of the California real property owned by your business. In addition, if you fail to report an event triggering a change in ownership in a timely manner, you face substantial penalties from the State Board of Equalization.

Experienced Estate Planning Attorney in San Diego

Careful consideration should be given when choosing an estate planning attorney, because it is easy to overlook property tax and other issues. Hiring the least expensive attorney to do your estate plan could result in increased property taxes for as long as you own your property.

In next month’s blog entry we will take a close look at property tax issues that arise in probate and trust administration. If you have any questions regarding estate planning, contact the Casiano Law Firm for assistance.

How Much Will it Cost You to Die Without an Estate Plan?

2011-03-31T16:00:00.000-07:00

Occasionally we will meet with a potential client who questions whether the cost of estate planning is really justified. The answer to that question involves consideration of several different factors, including planning for the possibility of future incapacity, tax considerations, and whether probate administration will be required. This blog entry will focus on the cost of probating an estate in California. Generally speaking, if a person dies with assets titled in their name, subject to some exceptions for a very small estate, probate administration will be required.

Probate refers to the process where the court oversees the administration of a deceased person’s estate. The purpose of probate administration is to ensure that any final bills and expenses of the decedent are paid, including any taxes owed, and any claims by creditors settled. Probate is a costly, time consuming process. Probate fees in California are high, and generally fall into three categories:

Court costs, including court fees, publication fees, surety bond fees, probate referee fees, certification and recording fees;
The personal representative’s fee (the fee paid to the administrator of the estate for his or her services); and the
Attorney’s fee for his or her services

The fees paid to the personal representative and the attorney are set by law and computed upon the gross value of the estate as follows:

4% on the first $100,000
3% on the next $100,000
2% on the next $800,000
1% on the next $9,000,000
½% on the next $15,000,000
“reasonable” compensation on the excess over $25,000,000

It is important to note that the gross value of the estate is based upon the full value of the assets of the estate, not taking into account any mortgages, debt or other loans or encumbrances on the asset. For example, the deceased may have a home with a value of $1,000,000 and a mortgage of $975,000. The fee to probate the home would be based on the full value of $1,000,000, not the $25,000 net value of the property ($1,000,000-$975,000).

As you can see, failing to create an estate plan can be costly in terms of probate administration fees. Planning in advance will allow your beneficiaries to avoid both the cost and time delay associated with probate. If you have any questions regarding estate planning or probate, contact the Casiano Law Firm for advice and assistance.

Estate Administration in 2011

2011-02-28T15:51:00.000-08:00

The new tax law provides an option for the executor of an estate of a person who died in 2010 to select between the “repeal” regime of 2010 or the new “taxable” regime as it applies in 2011 and 2012. What exactly does this mean for an estate? The executor has a choice between (i) avoiding all estate taxes, regardless of the size of the estate, but receive only a limited stepped-up basis for capital gains tax purposes; or (ii) take an unlimited stepped up basis, but the decedent’s estate will be subject to estate tax to the extent it exceeds $5 million, excluding amounts passing to a surviving spouse or a charity.

For an estate less than the exemption amount of $5 million, or if the amount of the estate over the exemption passes to a trust for the surviving spouse, the executor will probably opt for the “taxable” regime in order to take advantage of the unlimited step up in basis. Even if the estate is significantly more than $5 million, if the excess amount is passing to the surviving spouse or in trust for the surviving spouse, there will be no estate tax owed due to the marital deduction; the estate tax will be deferred until the death of the surviving spouse.

However, if the surviving spouse’s estate is likely to be much higher than the $5 million new estate tax exemption, it makes sense to avoid the 35% estate tax under the taxable regime, even though it means the estate will only receive a limited stepped up basis. The larger the estate, the greater the incentive to elect for the repeal regime to avoid any estate taxes.

The new 2010 tax act makes significant changes to gift, estate, and generation-skipping transfer taxes which are complex and confusing. We will continue to analyze the 2010 tax act and share with you how it may impact your estate. Thanks for reading our blog. If you have any questions, or need assistance in an estate planning, probate or trust administration matter, contact the Casiano Law Firm.

Review Your Estate Plan in View of Recent Estate Tax Changes

2011-01-31T16:06:00.000-08:00

After much uncertainty and speculation regarding the future of federal estate taxes, on December 6, 2010 President Obama announced a tentative deal had been reached with Republicans to extend the Bush area tax cuts. Effective January 1, 2011, estate taxes are once again in effect, but at an exemption of $5 million for an individual, or collectively $10 million for a married couple. The applicable estate tax rate is 35%. This exemption and estate tax rate will be in effect for two years.

Tax historians note that the new estate and gift tax rates are the most generous since 1931, and provide a unique, yet temporary window for the wealthy to utilize various gifting strategies to pass assets to their children without incurring gift, estate, or generation-skipping transfer tax. This tax break impacts a number of American families. According to the Federal Reserve Survey of Consumer Finances, in 2007, 5.4 American households had a net worth in excess of $2 million.

However, even Americans with no intention of making significant gifts have reason to be concerned about this recent estate tax change, and should have their existing estate planning documents reviewed in light of this change. Many trusts contain what are known as “formula clause” provisions, which tie the amount of a bequest to the applicable estate tax exemption. These clauses were designed to maximize the amount a couple could pass on tax-free. Unfortunately, the current exemption of $5 million is significantly different from that of past years, such as the $1.5 million exemption which was in effect in 2005. Thus, if a spouse dies in 2011 with a $3 million estate and unchanged formula clauses, the surviving spouse may be entitled to nothing outright because all of the assets would pass into a trust.

Over the next few months we will examine the recent tax change in more detail, including how this change could affect your estate plan, and the planning opportunities presented by this change. For a personalized consultation regarding your estate plan, contact the Casiano Law Firm.

Medi-Cal Planning: Special Needs Trusts

2010-12-30T12:43:00.001-08:00

In last month’s blog entry we gave an overview of Medi-Cal planning and the factors one should consider when planning for Medi-Cal benefits. In this month’s blog entry we’ll cover Special Needs Trusts and how they can benefit a Medi-Cal recipient.

If the intended beneficiary of a trust is receiving Medi-Cal, SSI, or other governmental benefits, great care must be taken to structure the gift to the beneficiary in such a way that it does not disqualify the beneficiary from receiving continued assistance. Special Needs Trusts, which are sometimes called a “supplemental needs trust”, are trusts that are drafted carefully to ensure that a disabled beneficiary continues to be eligible for government benefits. In a Special Needs Trust, distributions from the trust are designed only to supplement, not supplant or replace, the benefits being received under the trust.

Special Needs Trusts require careful drafting. Distributions must be purely discretionary, with no obligation on the trustee to make mandatory payments to the beneficiary. Special Needs Trusts are often used to protect beneficiaries with permanent disabilities, such as Down’s syndrome, severe autism, or cerebral palsy. These trusts may also be used to shield funds recovered from personal injury litigation or workers’ compensation injuries from disqualifying the beneficiary from receiving Medi-Cal benefits.

The laws concerning Medi-Cal benefits are constantly changing, and it is important to seek the advice of an experienced elder law and estate planning attorney who is readily familiar with any developments in this area of law.

Thanks for reading our blog. If you have questions regarding Special Needs Trusts or would like to learn more about the advantages offered by this type of trust, contact the Casiano Law Firm.

Medi-Cal Planning-An Overview

2010-11-30T09:22:00.000-08:00

In past blog entries we have discussed how estate planning documents such as trusts, durable financial powers of attorney and advance health care directives provide a plan in the event of future incapacity. At the Casiano Law Firm, we also focus on planning involving Medicare, Medi-Cal, Social Security, and supplemental and long-term care insurance policy issues as part of our comprehensive elder law representation. This month’s blog will focus on an overview of Medi-Cal planning.

What is Medi-Cal?

Medi-Cal is California’s version of the federal Medicaid program that provides additional health insurance for qualified individuals who are at least 65 years of age, blind, or disabled. Medi-Cal is often used to assist residents in skilled nursing facilities who have exhausted their Medicare skilled nursing home coverage. Medicare covers the first 20 days of skilled nursing home coverage, then requires a co-payment of $137.50 per day for days 21 through 100, conditioned on the patient showing improvement in his or her condition. After 100 days, the patient is converted to “private pay” status where the patient must pay the monthly expense, which averages about $6,300 per month. In contrast, Medi-Cal will continue to pay for skilled nursing home expenses indefinitely, regardless of whether or not the patient shows improvement.

Important Factors to Consider in Medi-Cal Planning

Medi-Cal planning requires a careful and thorough review of your assets, income, and estate planning documents to develop a plan tailored to your unique situation. A comprehensive Medi-Cal plan should consider three important factors:

Eligibility planning for Medi-Cal benefits;
Income planning to reduce or eliminate the monthly “share of cost” to be paid by the Medi-Cal beneficiary; and
Estate recovery planning to reduce or eliminate the recovery of the amount of benefits paid out from the beneficiary’s estate.

Don’t Transfer or Give Away Assets

We are frequently asked by clients if they should simply give away their assets. Do not give away any assets or transfer title to your real property without first consulting with an experienced elder law attorney. Medi-Cal considers certain assets to be exempt for the purpose of determining eligibility, and a special petition or administrative hearing may be used to increase the standard eligibility limit, reduce or eliminate the co-payment, or eliminate Medi-Cal’s ability to recover for benefits paid out under some circumstances. Certain property transfers can have significant tax consequences, and improper transfers can result in the disqualification of a Medi-Cal beneficiary and a significant period of ineligibility for Medi-Cal benefits.

Consult an Experienced San Diego Elder Law Attorney

Medi-Cal regulations are frequently changing and this area of planning requires the assistance of experienced counsel familiar with both elder law and estate planning matters. If you have questions regarding Medi-Cal planning, contact the Casiano Law Firm for a free telephone consultation with an experienced San Diego elder law and estate planning attorney.

Financial Powers of Attorney

2010-10-29T14:46:00.000-07:00

A financial power of attorney is a document that authorizes someone (referred to as your “agent”) to act on your behalf. A financial power of attorney may be limited to a specific term or give your agent the authority to take only a certain specified action on your behalf (such as the power to complete a real estate transaction while you are away on vacation), or it may convey broad authority to your agent to act on your behalf. A financial power of attorney may be “durable” in nature, meaning it is not affected by your subsequent incapacity. It may also be “springing”, meaning it does not take affect until the occurrence of a specified event, such as a determination that you are no longer capable of managing your own financial affairs, or it may be immediately effective upon the signing of the document.

Do you need a financial power of attorney?

Many clients ask why they need a financial power of attorney. They assume that their spouse automatically has the authority to act on their behalf in the event they become incapacitated. However, this simply isn’t the case-your spouse will need to have the authority conveyed under a power of attorney, or be appointed as your conservator, in order to take certain actions on your behalf if you are incapacitated. Other clients assume that if they have a trust, they don’t need a financial power of attorney, since if they become incapacitated, their successor trustee will manage the assets held in the trust. While this is true, there are many actions that the successor trustee is not authorized to take on your behalf if you are incapacitated, such as signing your tax return, dealing with Social Security, Medicare, insurance, etc., and handling assets which are not held in the trust. For this reason, a financial power of attorney is advisable even if you hold all of your assets in your trust.

Who should you name as agent?

Careful consideration should be given to your choice of agent. Financial powers of attorney are important legal documents that can convey important powers to the named agent. You will want to name someone who is capable of managing money, who will make sound financial decisions, and who you trust will have your best interests in mind. Typically, if you have a trust, you will name the successor trustee of your trust as your agent on your financial power of attorney. Consult your estate planning attorney for further guidance on selecting an agent for your financial power of attorney.

Thanks for reading our blog. If you have questions, or need assistance with estate planning, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego estate planning attorney.

Estate Planning for the Possibility of Future IncapacityEstate Planning for the Possibility of Future Incapacity

2010-09-30T11:26:00.000-07:00

In the last two blog entries we discussed the importance of planning for the possibility of future incapacity. While some people may think this is a topic that impacts only the elderly, incapacity can strike anyone at any time, due to an accident, injury, or illness. In this month’s blog entry we will discuss how the use of a living trust and a durable financial power of attorney provide protection and a plan in the event of incapacity.

Revocable Living Trusts
A living trust is a document which you create during your lifetime which allows you to specify who will manage the assets of the trust (the “successor trustee”) and who will receive the assets of the trust (the “beneficiaries”) after your death. During your lifetime, you are typically both the trustee and the beneficiary of the trust, ensuring that you still have complete use and control over your assets. As the name implies, you can revoke the trust or make changes to the provisions of the trust during your lifetime. In the event you become incapacitated, your successor trustee will manage the trust assets on your behalf, often avoiding the necessity for a conservatorship proceeding, which we discussed in our July blog entry.

Durable Powers of Attorney for Financial Matters
A durable power of attorney for financial matters is a document in which you specify who will make financial decisions on your behalf in the event you become incapacitated (your “agent”). This document may be immediately effective upon execution, or it may be springing, meaning it becomes effective only upon your incapacity. The document is “durable” in nature in that it is not affected by your subsequent incapacity-the powers given to your agent will continue despite your loss of capacity. Even if all of your assets are held in your living trust, and are therefore under the management of your successor trustee if you become incapacitated, you will need a durable power of attorney for financial matters to give your agent the authority to sign your tax returns, deal with your insurance company, and handle other financial matters on your behalf.

Estate Planning Issues Require Experienced Legal Representation
Comprehensive estate planning includes careful consideration of various contingencies, such as the possibility of future incapacity. If you need assistance with estate planning, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego elder law and estate planning attorney.

Advance Health Care Directives

2010-08-27T12:19:00.000-07:00

An Advance Health Care Directive (AHCD) is a document that allows you to specify your health care preferences and appoint someone to carry out your wishes for you in the event you are incapacitated or otherwise unable to communicate. An AHCD allows you to inform your doctor, family and friends of your preferences regarding your medical care and treatment, including end-of-life decisions. By specifying your wishes in advance, you ensure the quality of life that is important to you and spare your loved ones from having to guess what your preferences would be, or force them to make difficult decisions at a time when they are emotionally distraught. If at some point you become incapacitated, a valid AHCD can eliminate the need for a conservator to be appointed to make decisions regarding your care and medical treatment.

California law requires certain provisions to be included in your AHCD and certain formalities to be followed in the execution of an AHCD, but there is no one single form required for a valid AHCD. An AHCD should designate a person to carry out your wishes (this person is referred to as your "agent") and may include provisions:

Regarding life support or other life-prolonging measures
Authorizing an autopsy
Directing disposition of remains
Nominating a conservator
Naming a primary physician
Specifying your wishes regarding organ donation

AHCD Replaces Earlier Forms of Health Care Directives
Effective July 1, 2000, California consolidated various earlier forms used to designate health care preferences into the AHCD; earlier forms of health care directives included the Durable Power of Attorney for Health Care, Natural Death Act Declaration, and the Directive to Physicians. The AHCD is sometimes referred to as a "Living Will" in other states.

If you have a valid Durable Power of Attorney for Health Care or other valid health care directive executed prior to July 1, 2000, the document can remain in effect. However, you may want to update your health care directive to specifically refer to the Health Insurance Portability and Accountability Act (HIPAA), which regulates the use and disclosure of certain protected health information by doctors, hospitals, and other health care providers. Some medical providers have misinterpreted the privacy rules of HIPAA and have withheld the release of patient information from the patient's family. Although the California Probate Code does not require the AHCD to specifically refer to HIPAA, many estate planning practitioners include a provision releasing the medical provider from liability under HIPAA for disclosure of protected information to the patient's health care agent and/or family.

Estate Planning Issues Require Experienced Legal Representation
If you need assistance with estate planning, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego elder law and estate planning attorney.

Planning for Potential Incapacity

2010-07-30T15:40:00.000-07:00

When most people think of estate planning, they think about who will manage their estate and how their assets will be distributed and divided upon their death. However, a comprehensive estate plan does more than just provide a plan in case of death; it also provides a plan in case you become incapacitated or disabled, whether as a result of an illness, injury or other event. Over the course of the next few blog entries, we will cover some of the estate planning documents that can be used to provide a plan for possible incapacity, including the use of advance health care directives, general durable powers of attorney, and trusts. In this month’s blog we will discuss conservatorships and how the necessity for a conservatorship proceeding can be avoided through advance estate planning.

Why Plan for Incapacity?

Statistics show that people are living longer, but at some point many people lose the ability to make financial and/or medical decisions on their own behalf. Our office is frequently contacted by family members or friends who are concerned about the well-being of a loved one. Sometimes the person has become incapacitated as a result of a stroke or an illness, such as Alzheimer’s or another form of dementia. In other instances a young person has been incapacitated as a result of an accident, head injury, or even an assault. Incapacity can strike at any time and at any age.

What Happens If You Don’t Plan Ahead?

Unfortunately, with many of the inquiries we receive, the incapacitated person has not executed an advance health care directive (or its predecessor, the durable power of attorney for health care), nor have they executed a general durable power of attorney for financial matters. Since the person is now incapacitated, they lack the legal capacity necessary to properly execute these estate planning documents. The only option at this point is to petition the court for conservatorship of the person and/or conservatorship of the estate.

What is a Conservatorship?

A conservatorship a court proceeding where a judge appoints a person or entity (referred to as the “conservator”) to handle the care and/or finances of a person who is determined by the judge to be unable to care for themselves or their finances (this person is referred to as the “conservatee”). There are two types of conservatorship proceedings in California: 1) conservatorship of the person; and 2) conservatorship of the estate.

A conservator of the person arranges for the conservatee’s care and makes decisions regarding the conservatee’s housing, health care, food, clothing, housekeeping, transportation and recreation. A conservator of the estate is in charge of handling the conservatee’s finances. The conservator of the estate makes an inventory of all of the conservatee’s assets, ensures that the conservatee’s taxes are filed and bills are paid, makes a plan to make certain the conservatee’s financial needs are met, invests assets, and maintains financial records. It is permissible and often common for the conservator of the estate to be the same individual or entity as the conservator of the person.

The imposition of a conservatorship removes a person’s right to make certain decisions for himself or herself; it is viewed as an option of last resort and is only granted by the court when there are not any less restrictive alternatives available. Conservatorships are often criticized as being expensive, time-consuming, inflexible and cumbersome.

Seek Experienced Legal Representation

If you need assistance with estate planning or a conservatorship proceeding, contact the Casiano Law Firm for a complimentary telephone consultation with an experienced San Diego elder law and estate planning attorney.

California’s Expanding Financial Elder Abuse Laws

2010-06-10T16:04:00.000-07:00

Over the past five years, California’s lawmakers have been increasing protections for elders, defined as California residents age 65 or over, including protections to address the growing problem of financial institution involvement in financial elder abuse.

Lawmakers enacted amendments to California’s elder abuse laws in the Financial Elder Abuse Reporting Act of 2005, which went into effect nearly three years ago. As of January 1, 2007, financial institutions, including banks and credit unions, as well as their employees, are required to report suspected incidents of financial elder abuse. The amendments also added civil fines ranging from $1,000 to $5,000 which may be levied against financial institutions if their employees fail to report abuse as required under the Act.

In 2008, lawmakers expanded elders’ rights again with the enactment of a California Senate Bill that expanded the definition of financial elder abuse to include situations where “undue influence” is used to misappropriate an elder’s property. The bill also expanded elders’ rights by making it easier for elders to prove that the misconduct meets the law's requirements that the taking be for a “wrongful use.”

California’s Current Definition of “Financial Elder Abuse”

As it is now defined, financial elder abuse in California occurs when: “a person takes, secretes, appropriates or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both” or does so by the use of “undue influence,” including through the use of “an agreement, donative transfer, or testamentary bequest.” Assisting a person in committing prohibited conduct is also a violation of the law. (California Welfare & Institutions Code § 15610.30(a)-(c).)

If You Suspect Financial Abuse, We Can Help You

Financial elder abuse can take many forms, including overpaying for services such as home repairs, outright gifts of cash, telemarketing scams, or convincing an elder to invest in inappropriate or highly risky investments, such as annuities which yield little return to the elder, but pay high commission to the sales agent. If you suspect that you or a loved one has been a victim of financial elder abuse, contact The Casiano Law Firm for a confidential consultation.

Nursing Home Fined $80,000 in Patient’s Death

2010-05-04T12:30:00.000-07:00

Homewood Care Center in San Jose was fined $80,000 and given a “AA citation”, the most severe penalty under California law, after a state investigation determined that a nurse’s failure to administer the Heimlich maneuver on a choking patient resulted in the patient’s death. According to a report by the Department of Health and Human Services, the patient was admitted to the care facility with a diagnosis of Alzheimer’s disease and dysphagia, or difficulty swallowing. The man was assessed as a high risk for aspiration (the entry of secretions into the trachea and lungs) due to difficulty of swallowing. The report also indicated that the man had a no-CPR order, meaning he did not want any cardiopulmonary resuscitation, however investigators concluded that a no-CPR order does not preclude abdominal thrusts, such as those performed during the Heimlich maneuver.

Patient Choked While Being Fed Dinner
On August 24, 2009, at 5:30 p.m., a certified nurse assistant was feeding the man a dinner of pureed food when he suddenly began coughing violently. Although staff members thought the man was choking on food, they did not attempt to perform abdominal thrusts to clear his airway. Investigators found the facility did not promptly call 911. Although staff members claimed they called 911 at 5:30 p.m., records indicated the call was placed at 5:49 p.m., a delay of 19 minutes. A police report indicated the man was dead when paramedics arrived.

Aftermath of this Tragedy
Following the death of the patient, a registered nurse who failed to implement emergency procedures was fired, and the director of nursing at the time of the incident was relieved of his duties.

When the state health department issues a citation or finds a deficiency, the care center must submit a plan of correction. After the plan is accepted and the health department completes a surprise inspection, the agency issues a fine or citation. Homewood submitted a plan of correction, which was accepted on March 11, 2010.

Nursing Home Owner’s Troubled History
Until January of this year, Homewood was owned by Jack Easterday, who is currently in prison for withholding $9.6 million in payroll taxes from employees’ checks and willfully failing to pay employment taxes. Easterday was the sole shareholder of Westline Medical Management, which owns Homewood and seven other nursing homes in California. Easterday resigned as a corporate officer of Westline in January and transferred his shares to an administrator. Easterday and Westline have a history of providing poor nursing home care. In 2007, two other facilities owned by Westline were each fined $100,000, the highest fine possible, for their role in the death of two patients.

If you or someone you know has been the victim of nursing home abuse or negligence, contact the Casiano Law Firm for a confidential consultation to discuss your case.

Murder and Financial Elder Abuse in Northern California Nursing Homes

2010-03-29T15:08:00.000-07:00

Unfortunately, sometimes the very people who are responsible for the care of elders are the very same people who abuse them. Two alarming cases of elder abuse by caregivers made national headlines this past week. Both cases involved caregivers working in nursing homes in the San Francisco Bay Area; one case involved the deliberate murder of a patient, and the other involved financial elder abuse.

Daly City Nursing Home Assistant Murders Patient

A 37 year-old certified nursing home assistant, Maximo Hong Fajardo Jr., intentionally smothered 87 year-old Barbara McIver with a pillow in front of other patients and staff members. Fajardo had been a certified nursing home assistant for over ten years, but had been employed at the Convalescent Center Mission Street in Daly City, just south of San Francisco, for two weeks. After smothering McIver, Fajardo fled the nursing home and carjacked a car in an attempt to escape. He is currently being held on $10 million bail

Former Nursing Home Administrator Accused of Financial Abuse of Residents

In Berkeley, California, former assistant administrator of the Elmwood Nursing and Rehabilitation Center, Concepcion "Connie" Pinco Giron told her supervisor that Carnell Williams, a patient at the home, was being transferred to another facility. Giron then proceeded to move Williams into her own home, and began cashing Williams’ pension and social security checks. Giron is also accused of establishing bank accounts for five other patients and transferring funds from those accounts into her own bank account. Giron used the patients’ ATM cards and wrote checks to herself from their accounts.

Giron is currently being held in lieu of $365,000 bail and has been charged with multiple counts of elder abuse and theft from elder or dependent adults by a caretaker, kidnapping to commit another crime, and false imprisonment.

Unfortunately these are not isolated incidents. According to the San Francisco Examiner, one out of 20 elders in California will be the victim of neglect, psychological, physical or financial abuse this year. If you or someone you know has been the victim of nursing home abuse or negligence, contact the Casiano Law Firm for a confidential consultation to discuss your case.

Financial Elder Abuse Is a Growing Concern for California’s Growing Elderly Population

2010-02-11T11:25:00.001-08:00

As the “boomer” generation ages, experts predict that the problem of financial elder abuse will boom as well. Incidents of elder abuse in California and across the nation are already becoming an issue of serious concern among lawmakers.

The California Department of Aging reports that by 2050, there will be 14.6 million Californians over the age of 60 and that between 2010 and 2020, there will be a 128% increase in the number of Californians in that age group. The report also states that San Diego County can expect a 96% increase in the number of residents over the age of 60 between 2010 and 2030.

Recent Headlines Highlight Financial Elder Abuse Problem

California news headlines are replete with recent incidents of financial elder abuse committed by financial institutions. Here are just a couple of examples of the egregious behavior that has been in the news recently. On February 4, the San Francisco Chronicle reported that a Bank of America customer service representative has been charged with stealing $61,000 from a 96-year-old woman after convincing her to allow him access to her accounts as her personal banker. On January 10, 2010, Investment News reported that a Financial Industry Regulatory Authority (FINRA) arbitration panel awarded a 95-year-old man $1.6 million after finding a Beverly Hills investment firm and two of its brokers guilty of self-dealing. The brokers convinced the man to leverage his equity in his home to make overly risky investments. (FINRA is an independent regulatory agency, empowered by the federal government to oversee securities and brokerage firms and protect investors.)

$2.6 in Annual Losses

According to a study released last year by the MetLife Mature Market Institute, the National Committee for the Prevention of Elder Abuse, and the Center for Gerontology at Virginia Polytechnic Institute and State University, financial elder abuse results in an annual loss of $2.6 billion. The study also found that that the people who commit the abuse are usually people in a position of trust, including family members and business professionals. Common types of financial elder abuse committed by business professionals included: false sales of and misrepresentations concerning stocks and other investments; and fraudulent banking practices including “account draining or siphoning.”

We Help Victims of Financial Elder Abuse

If you suspect that you or a loved one has been a victim of financial elder abuse, we can help you. Contact The Casiano Law Firm for a confidential consultation.

Nursing Home Abuse Occurs Even in Highly-Rated Facilities

2009-12-22T11:45:00.000-08:00

A recent incident of nursing home abuse in California highlights how important is it for family members of nursing home patients to pay careful attention to their loved one's health. In particular, noting any unexplained bruising, change in medical condition, or change in mood is crucial to discovering any abuse or neglect that might be occurring.

A recent trial verdict awarded $7.75 million in compensatory and punitive damages to a family of Maria Arellano, a 71-year-old nursing home patient who had been severely abused by a nursing home employee. The facility where the victim resided, the Fillmore Convalescence Center, had been awarded a five-star rating from Medicare's Nursing Home Comparison. The fact that the facility received the highest possible rating demonstrates that nursing home abuse can occur in any facility, and family members must always be vigilant in looking for the often subtle signs that abuse is occurring.

Ms. Arellano had previously suffered a stroke that left her unable to verbally communicate. Her family members noticed she had bruises that could not be explained. After nothing was done in response to the family members' report to the facility management, they decided to place a hidden camera next to Ms. Arellano's bed. This revealed egregious abusive behavior, including pulling her by the hair, slapping her, bending her fingers, neck, and wrists, and treating her violently in general. Based on what was shown in the hidden camera video, the family filed a lawsuit and won the large verdict. The nursing home employee also pled no contest to criminal battery charges and is no longer working in the nursing home industry.

While one abusive employee does not necessarily mean that an entire facility is abusive towards its residents, it highlights a very important problem in discovering elder abuse: many victims are incapable of reporting the abuse themselves. This means that it is often up to the resident's family members to visit frequently and monitor their loved ones' health, and we encourage you to frequently check on your loved one and look for anything that might be amiss. If you have noticed a change in your loved one's physical or emotional condition and believe that your loved one might be a victim of elder abuse or neglect, we are here to help. Contact The Casiano Law Firm for a confidential consultation.

Report Finds California’s Long-Term Care Ombudsmen Are Unable to Stop Abuse

2009-12-01T14:23:00.000-08:00

According to a new report, many cases of nursing home abuse and neglect are likely going unnoticed in California. The report attributes the problem to recent budget cuts as well as conflicting ombudsman duties and conflicting confidentiality laws.

On November 3, 2009, the California Senate Office of Oversight and Outcomes released the report revealing serious defects in California’s Long-Term Care Ombudsman program. California’s Elder Abuse Investigators: Ombudsmen Shackled by Conflicting Laws and Duties can be viewed here.

California’s ombudsmen were originally charged with advocating for the elderly in nursing homes and generally providing a watchdog presence. Today, their primary task is investigating claims of abuse and neglect within nursing homes. Where they used to collaborate with nursing homes and act as a liaison between management and residents, now they are placed in an adversarial role, which grants them less access to the inner-workings of the nursing homes they cover and makes them less effective advocates. Additionally, investigations are complex and time-consuming, so most ombudsmen no longer have time to make regular nursing home visits, establish any sort of regular presence, or provide advocacy services.

Unfortunately, ombudsmen also receive more complaints than they are able to investigate. Since last year’s massive state budget cut, the ombudsman program has been left with about half of the budget it previously had. It appears that individual ombudsmen are adjusting to the loss of resources by allowing some allegations of abuse to go uninvestigated. According to the report, ombudsmen forwarded 44 percent fewer complaints to outside agencies for enforcement since the budget was cut.

The report also states that, in many cases, ombudsmen have their hands tied when they try to pursue cases of alleged abuse. Typically, when ombudsmen investigate complaints and find one they believe to be well-founded, they are instructed to forward it to the appropriate outside agency for further investigation, protection, and potential prosecution. But many of these legitimate complaints are not being forwarded. A federal law prohibits ombudsmen from forwarding a complaint without a release of identity from the person who made the complaint. But many of the elderly making complaints refuse to release their names for fear of retaliation within their nursing home. In fact, according to the report, three quarters of people who made complaints refused to release their identities.

Elderly individuals who are subjected to abuse or neglect should not have to keep quiet in order to avoid further harm in the nursing homes where they live. If you or a loved one has been mistreated in a nursing home, contact The Casiano Law Firm for a confidential consultation.

San Diego County Nursing Home Fined for Resident's Death

2009-10-09T08:22:00.000-07:00

Fallbrook Hospital District Skilled Nursing Facility, located in San Diego County, has received the most severe penalty under California law that long-term nursing facilities can receive. An investigation by the California Department of Public Health (CDPH) revealed that inadequate care had led to the death of a male nursing home resident last summer.

Fallbrook received an "AA" citation and was fined $90,000 by the CDPH. The CDPH is responsible for issuing citations and fines when nursing homes are found to be providing inadequate or negligent care of their residents. The CDPH has three different categories for citations and fines, with the "AA" citation being the harshest penalty. The categories are as follows:

- Class AA: $25,000 to $100,000 fine

- Class A: $2,000 to $20,000 fine

- Class B: $100 to $1,000 fine

According to CDPH's site, an "AA" citation is defined as "a violation that has been 'determined to have been a direct proximate cause of death of a patient or resident of a long term care facility.'" To enforce an AA citation, the CDPH must prove (1) the violation was a direct proximate cause of death and (2) the death resulted from an occurrence that the regulation was designed to prevent.

According to California Healthcare Foundation's (CHF) site, Fallbrook is located in Fallbrook city in San Diego County. The facility accepts Medicare and Medi-Cal and it has a total of 93 beds. On CHF's site, Fallbrook received a below average rating for the number of hours staff devote to each resident per day. The facility also received a below average rating for the "complaints" category, and as for the "quality of care" category, CHF noted that eight percent of Fallbrook residents spend most of their time in bed, whereas the State's average was five percent.

In this particular instance, the director of CDPH, Mark Horton, stated that Fallbrook failed to initiate a plan to prevent the resident's risk of injury. The male resident was listed as having a high risk of falling. When the resident did fall, he broke his leg and he subsequently died of complications resulting from the surgery to his leg.

Federal Nursing Home Laws

Nursing homes that participate in Medicare and Medicaid programs must comply with federal rules regarding the type of care residents should receive. Under Title 42 CFR Section 483.20, nursing homes must conduct initial and periodic assessments of each resident's functional capacity. The assessment must include a review of the resident's cognitive patterns, communication, psychosocial well-being, physical functioning, and medications among other factors.

Title 42 CFR Section 483.25 also states that each resident must receive and the nursing facility must provide "the highest practicable physical, mental, and psycho-social well-being" for residents, in accordance with the assessment of the patient's needs and plan of care. It appears that in this situation, Fallbrook failed to take the necessary measures to ensure that the resident would be safe and not susceptible to injury.

When nursing home management and staff fail to abide by federal and state rules, the risk of serious injuries and deaths of nursing home residents are considerable. It is imperative that families, who are trying to find the right nursing facility for their loved ones, research and visit facilities before making their final decision.

Unfortunately though, incidents of nursing home abuse and neglect do occur. If you or someone you know has been the victim of nursing home abuse or negligence, contact the Casiano Law Firm for a confidential consultation to discuss your case.

Law Restores Partial Funding to Program Aimed at Fighting Nursing Home Abuse

2009-09-02T13:13:00.000-07:00

Assembly Bill 392, signed into law on August 6, 2009, restores $1.6 million for local Long-Term Care Ombudsman programs. With this funding, local ombudsman programs should be able to reinstate some of the staff and services lost due to last year's budget cuts, providing critical monitoring of abuse and neglect in nursing homes and other long-term care facilities.

In 2008, about half of the Ombudsman budget, $3.8 million, was cut from the state budget in a gubernatorial veto. AB 392 restores less than half of that amount, which means the ombudsman programs will still operate with less staff and services than in the past, but hopefully with enough resources to address the most critical complaints.

Funding for the program will come from compliance penalties paid by nursing homes, so AB 392 should not have any direct impact on the state's General Fund.

The requirement for a long-term care ombudsman is actually a creature of federal law. Since 1978, the Older Americans Act has required every state to have an ombudsman program to receive and investigate complaints made by or on behalf of nursing home residents, and to advocate for changes and improvements in the long-term care system.

The author of AB 392, Assembly Member Mike Feuer (D-Los Angeles), was recently recognized as a 2009 True Friend of Seniors by the California Congress of Seniors for his work in securing passage of the bill.

Senior citizens are particularly vulnerable to abuse due to physical and mental incapacity. Nursing home residents are at even greater risk due to isolation from the public, friends, and family who might notice abuse or neglect or to whom the victims could complain. Local ombudsmen programs fulfill vital functions by conducting surprise visits to facilities and investigating complaints that come to their attention.

With the ombudsman program only partially restored, it is more critical than ever that residents have access to a voice to speak on their behalf. The Casiano Law Firm is dedicated to fighting nursing home abuse and serving the legal needs of seniors and their families. If you have personally experienced nursing home abuse or neglect or have a loved one in a facility and suspect abuse or neglect, contact me immediately for a confidential consultation.

California Budget Cuts May Lead to Devastating Results for the Elderly

2009-08-12T08:03:00.000-07:00

On July 28, 2009, Governor Arnold Schwarzenegger used his line-item veto powers to impose approximately $500 million in additional cuts to the state's budget plan. Significant cuts were made that affect society's most vulnerable individuals--children, the disabled, and the elderly. Approximately $6.3 million in services to the elderly were cut.

Affected Services
The services that were affected by the cuts and impact the elderly specifically include:

In-Home Supportive Services (IHSS): Enables the elderly and disabled, who are eligible, to remain in their own homes. California's IHSS program helps pay for various services, such as personal care services, meal preparation, and housecleaning services.
California Department of Aging-Linkages Program: Assists elderly adults and disabled adults, who wish to remain in their own homes, obtain comprehensive care management.
Medi-Cal: This is California's Medicaid program that provides health care to low-income elderly individuals and people with disabilities.

Other services that were impacted include aging and community programs and certain public health programs.

Potential Effects
The budget cuts severely impact home and community care programs that provide services to the elderly. These programs enable elderly people, who wish to remain at home, continue to receive services and care at their residence. Some expect that due to the cuts to these programs, there will be a sharp increase in nursing home admissions.

If there is a significant increase in nursing home admissions, there may be an increased incidence of nursing home abuse. If there is not enough staff to properly supervise and care for residents, this lack of supervision may lead to neglect and abandonment. Residents could also potentially injure themselves or others if there is inadequate supervision.

Even if the elderly person chooses to remain in his or her home, now there is a much higher risk that without adequate resources, the elderly person may not receive appropriate care. With less financial assistance, elderly people may also hire less-than-qualified caregivers to assist them, which could potentially lead to physical, emotional, sexual, verbal, or financial abuse or neglect.

Example of a Program Impacted by the Budget Cut
The Los Angeles Times stated that about 27,000 low-income seniors rely on a program which provides them with brown-bag lunches. Farms and other food producers donate the food and about 900 volunteers participate in the program. Before the passage of the current budget, California contributed $541,000 to the program for administrative services. Administration officials have admitted though that if the cuts go into effect, the program may fall apart, leading to potentially malnourished elderly adults.

Although the full impact of the budget cuts remain to be seen, individuals should be mindful of the negative potential effects these cuts may have on the elderly population. If you have experienced elder abuse or suspect elder abuse or neglect, contact me for assistance today.

Increase in Demand for Senior Services May Lead to “Senior Tsunami”

2009-07-09T13:44:00.000-07:00

As soldiers returned home from World War II and America entered into a new era of growth and prosperity, our country saw a spike in the birth rate, known as the baby boom. These “baby boomers” are no longer babies, but are now seniors in their sixties.

But it is not only the baby boomers who contribute to our country’s elder population. The growth rate of the elderly population greatly exceeded that of the population as a whole throughout the entire twentieth century, and this trend continues into the twenty-first century. The reason for this growth rate is most likely due to the incredible advancements made in science and health, which have contributed to much longer, healthier lives for people on average, compared to their nineteenth century counterparts or any era before.

While our elders are for the most part enjoying a higher quality of life in their later years than perhaps their ancestors did, they still need access to a variety of health services, which continues as they grow older.

Unfortunately, this growing segment is expanding in a time when financial pressures are placing severe constraints on public budgets. Unemployment is up and tax revenues are down, which means that public agencies have to fight over scarce resources. These agencies include the Department of Health Services (Medi-Cal) and numerous health care facilities, including hospitals, urgent care, home health and long-term care resources. Even private nursing homes are not immune. These facilities are regulated and overseen by public agencies, and as that system’s resources become overburdened, the quality of care in nursing homes can decline dramatically and incidents of abuse can go unreported and uncorrected.

A recent report in Los Angeles County referred to an upcoming “senior tsunami” and cited numerous instances where local government is falling short of meeting the needs of its senior citizens. Major areas identified included a lack of oversight of county agencies, a lack of a formal system for training and monitoring social workers, and a lack of resources focused on the prevention of elder abuse as opposed to only addressing abuse after it has occurred.

Now more than ever it is vital that you have someone on your side to protect your rights, someone who knows how the system works and can make sure that you and your loved ones are taken care of. Contact me today if you feel that your rights have been violated or need assistance navigating through the increasingly complex area of senior health care.

State Budget Amendment Could Affect Senior Care

2009-05-08T09:05:00.001-07:00

In an effort to trim the California state budget, the state legislature is considering an amendment that would cut state reimbursement provided to senior health care centers in half. There are currently 12 centers that focus on senior health care in the state.

As reported by the North Bay Business Journal, this proposed legislation would reduce the payment per visit from approximately $161 in a prospective payment system to a flat, fee-for-service rate of $76.22. Some believe this proposal would save California about $2.5 million.

If this legislation were implemented, it would have the considerable drawback of causing as many as seven of the existing 12 senior health centers to close. These closures could force many elderly patients into more expensive facilities for care. Seniors in these communities might then face increased difficulty in receiving care and endure increased health problems as a result. In some communities affected by this proposed legislation, the only facility providing care for seniors could be forced to close, such as in Marin County in Northern California. In many cases, many individuals over 60 reside in a county. For example, in San Diego County, more than 400,000 individuals over 60 reside in the county, according to the California Department of Aging. As a result, these changes could affect an important portion of the San Diego population.

Senior health care centers offer unique services

There are approximately 650 adult day centers in the state, but only the 12 affected by this legislation because they each have a health center license. Centers with the license are required to offer more services to the individuals they serve. Because these centers offer more services, supporters of the centers argue that these health care centers are justified in receiving about twice as much reimbursement from California, compared to most adult day care centers. The licensed centers have attained certification because they have at least one medical director and a registered nurse on site, while also providing occupational therapy, podiatry, speech and physical therapy and other services.

Affect of the proposed legislation

This legislation would go into affect on July 1, 2009 if approved by the legislature.

An analysis by the California Primary Care Association calculated that if passed, the cuts might end up costing more than the amount saved. This is because if seven health care centers were to close, many of the patients currently under their care would be forced to pursue treatment at other nursing or medical facilities. If that were to occur, the state and federal government would be forced to pay about $7.4 million more for their care at these new locations. In comparison, under the current scheme, the annual cost to the government for the seven existing facilities totals about $6 million.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. With all of the changes in resources available for elderly individuals, individuals must remain vigilant for abuse, negligence, or neglect by a nursing home or other elder care facility. Please contact Vincent M. Casiano, Esq. for a consultation if you believe you or a loved has suffered from abuse or negligence.

Mentally Ill Patients in Nursing Homes

2009-04-08T16:55:00.001-07:00

Approximately 125,000 young and middle-aged adults with significant mental illnesses resided in nursing homes in the United States in 2008, according to the Centers for Medicare and Medicaid Services, which reported on these numbers for the Associated Press. Additionally, more than nine percent of younger mentally ill people comprise the country's almost 1.4 million nursing home residents, an increase of six percent from 2002.

According to the Associated Press, the reason for this increase is due to several causes. First, state mental institutions have closed, leading to mentally ill people being placed in nursing homes. Second, more nursing home beds are available, since the elderly today are healthier than those of past generations, and thus live in their homes longer.

Violent Incidents at Nursing Homes
Over the years, tragedies have occurred at nursing homes due to the acts of mentally ill nursing home residents. For example, on May 30, 2008, Ivory Jackson, a nursing home resident suffering from Alzheimer's, was hit in the face with a clock radio while he was in bed. Jackson later unfortunately died of his injuries.

The perpetrator charged with the heinous crime was his roommate, who was a 50 year-old mentally ill man, about 30 years younger than Jackson. According to a state nursing home inspector's report, Jackson's roommate had a record of aggression and "altered mental status." The roommate was subsequently found unfit to stand trial and placed in a state mental hospital.

The fatal attack occurred at All Faith Pavilion, located in Chicago, Illinois, a for-profit nursing home with 231 beds. All Faith Pavilion participates in Medicare and Medicaid programs. The nursing home was fined $32,500 for the not preventing the assault.

Nursing Home Bill of Rights
The Nursing Home Bill of Rights (NHPBR), which is a federal law regulating the type of care nursing home patients must receive from nursing homes receiving Medicare or Medicaid, states under Title 42 of the Code of Federal Regulations (CFR) 483.112(a) that a state mental health authority must first determine whether the applicant who has mental illness needs the services that a nursing facility provides before being placed in a nursing facility.

Once the state mental health authority determines that a nursing facility level of care is required, then under Title 42 of CFR 483.120, the administrator must also determine if the patient needs specialized care, which involves implementing a plan of care that is created and supervised by a physician and mental health professionals. The plan of care aims at reducing the resident's behavioral problems, and can include specific therapies and activities for persons suffering from a mental illness.

The statutes mentioned above indicate that federal law requires a thorough screening of applicants with mental illnesses before they are accepted into the care of a particular nursing facility. It is important for families to thoroughly investigate the quality of the nursing home before they admit their loved ones into its care. For an official government guide to Choosing a Nursing Home

Thank you for reading this blog. If a loved one has been injured by another nursing home patient, contact me for immediate assistance.

Use of Chemical Restraints in Nursing Homes

2009-03-26T09:45:00.000-07:00

The Nursing Home Patients Bill of Rights (NHPBR) is a federal law that mandates the type of care nursing home patients, residing in nursing homes that receive Medicare or Medicaid, must receive. The NHPBR states under Title 42 Code of Federal Regulations 483.13, subsection (a) that nursing center residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

In a tragic case of nursing home abuse by nursing facility staff, three nursing center staff employees of Kern Valley Healthcare District violated the NHPBR and criminal statutes prohibiting elder abuse. The three staff members included the center’s one-time medical director, the former nursing director, and the former chief pharmacist. In a criminal complaint filed by the California Attorney General, it alleged that the nursing director administered these drugs to practically all the residents, except the most docile. The medical director allegedly approved the nursing director’s requests for medicating the residents. Additionally, the chief pharmacist complied with the requests for medication on the basis that the nursing director had experience working at psychiatric hospitals.

All three victims died unnecessarily. Fannie May Brinkley could have lived another couple years, but due to the anti-seizure drug, Depakote, she was given, and the lack of care by staff, she died. As for Joseph Shepter, he was given Depakote and two other drugs, and as a result lost 20 percent of his body weight. Thereafter, his health deteriorated, resulting in an infection and pneumonia; he eventually died as a result of his illness. As for Alexander Zaiko, he died after he was given Zyprexa, and Depakote.

In addition to these three residents, 20 other residents were given psychotropic drugs. Consequently, these individuals experienced numerous side effects, including severe weight loss, slurred speech, loss of cognition, tremors, and psychosis

The three nursing staff members are facing criminal charges, including charges for administering shots by force and without consent, and charges of assault with a deadly weapon.

NHPBR Protects Rights of Residents

The NHPBR has provisions that ensure the proper care of nursing home residents. Nursing facilities must have enough staff to make sure that residents have the highest practicable level of physical and mental well being. It also has provisions regulating pharmacists. Pharmacists are required to review the resident’s drug regimen periodically and report any irregularities in the resident’s drug regimen to the doctor or the nursing director.

Steps to Take if You Discover Elder Abuse

Besides contacting an attorney who is qualified and experienced in handling elder abuse cases, it is important to take immediate steps in preserving evidence that will later be useful. It is important to take photos of any noticeable physical injuries or conditions, writing down information about the incidents of abuse, and obtaining a copy of the medical chart from the nursing home.

The improper use of chemical restraints against nursing home residents is both wrong and criminally punishable. Although under reasonable circumstances a licensed physician may suggest chemical restraints after other methods have been exhausted, they cannot be used for the sake of convenience of the nursing staff. If someone you know and care about has been improperly restrained and injured as a result, contact an elder abuse lawyer immediately.

Nursing Facility Resident Dies of Fire-Related Injuries

2009-02-18T14:47:00.001-08:00

A 74 year-old female resident of the Lemon Grove Care and Rehabilitation Center near San Diego, California caught fire while smoking at the facility’s patio on March 31, 2008. Less than two weeks later, the woman died of burn-related injuries she suffered to her face, head, chest, fingers, and arms.

The California Department of Public Health’s investigative report regarding the incident showed that the woman had been smoking in the patio-gazebo area, which had been designated for smoking. According to the report, no staff member was supervising her, even though a prior plan of care by the facility indicated that the woman was a potential risk for smoking-related injuries, and thus needed to be monitored to assess compliance with the facility’s smoking policy.

The woman had been sitting on her electric scooter and shielded herself from the wind by placing a jacket over her head, while trying to light her cigarette at the same time. However, her jacket caught on fire as she tried to light her cigarette. To see the Department’s investigative report, click on the following link:

Lemon Grove Care and Rehabilitation Center
Prior to this incident, Lemon Grove received three minor citations, one dating from 2005, and another two dating from 2008. Lemon Grove provides a full range of nursing services, ranging from physical, occupational, speech, and intravenous therapies, to assisting patients who are recovering from serious illnesses or injuries. Residents receive both long and short-term care from this facility.

Type of Care Nursing Residents Should Receive
The Department of Public Health cited the center with violating 42 CFR 483.25(h)(2) of the Federal Code. Title 42 CFR 483.25, subsection (h) states, “The facility must ensure that (1) the resident environment remains as free of accident hazards as is possible; and (2) each resident receives adequate supervision and assistance devices to prevent accidents.” To view the entire statute, click the following link:

Lemon Grove Received the Highest Penalty Under State Law
In this incident, Lemon Grove received an “AA” citation and was fined $80,000 by the Department of Public Health. “AA” citations are issued when a resident has died at a facility and the facility’s violation of the law was the proximate cause of the death. The “AA” citation is the most severe violation a nursing facility can receive under state law. Fines for “AA” citations range from $25,000 to $100,000. Moreover, if a facility receives two “AA” citations in less than two years, the process for revoking the facility’s license automatically starts.

Other less severe citations a nursing facility can receive are “A” citations and “B” citations. “A” citations are issued by the Department of Public Health when patients face imminent danger, or the probability of death or serious harm due to the facility’s violations. Such fines range from $2,000 to $20,000. “B” citations are issued for violations that concern health, safety, or security, but do not rise to the level of “A” or “AA” citations.

If you have a loved one who is not being properly cared for at a nursing center, it is important that you contact a San Diego elder abuse attorney to protect his or her rights. If you have a question or comment, please respond to this posting, but keep in mind that your responses will not be confidential. You can also call or e-mail us if you would like to discuss the matter in confidence. Thanks for reading our blog.

Medicare Releases Nursing Home Rating System

2009-01-06T08:57:00.001-08:00

The Centers for Medicare and Medicaid Services created a rating system for comparing nursing homes throughout the United States. The ratings are searchable through the Centers for Medicare and Medicaid Services website, through a Nursing Home Compare search engine. The ratings are based on three categories:

Health Inspections
Staffing
Quality

These three categories are each given an individual a star rating on a one to five scale. The ratings are then combined to create an overall ranking for each nursing home on a one to five star scale.

Rating San Diego Area Nursing Homes
A search of the database for nursing homes within a 25 mile radius of San Diego reveals that, out of the 59 nursing homes identified, 22 received overall ratings of four or five stars. An additional 19 nursing homes received three star ratings. The remaining 18 nursing homes received one or two stars.

San Diego area nursing homes are made up of 10 not-for-profit or government run nursing homes, with the remaining facilities being run for-profit. Overall, the for-profit nursing homes performed poorly compared with the not-for-profit or government run facilities. All of the nursing homes that received a one star rating are run for-profit. In addition, of those nursing homes receiving two stars, only one was a not-for-profit nursing home. USA Today reports that not-for-profit nursing homes received higher overall ratings than for-profit nursing homes under the rating system. As a result, the performance of San Diego for-profit nursing homes compared to not-for-profit nursing homes parallels the national results.

How to Use the Rating System
Those looking for a nursing home for themselves or a loved one should not rely solely on this new rating system. Instead, the ratings can provide a starting point to identify some possible facilities.

Choosing a nursing home in an area close to a person’s family and friends often improves the quality of an individual’s experience in a nursing home. With that in mind, the database can also be used to locate nursing homes in a specific area. You should always visit a nursing home to determine whether it will meet the resident’s needs and ensure that the facility provides the proper quality of care for each of its residents.

With complaints against California nursing homes to the California Department of Public Health increasing from 5,742 in 2004 to 6,950 in 2008, the importance of researching a nursing home continues to be an important part of ensuring proper elder care.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one have been the victim of abuse, negligence, or neglect by a nursing home, contact a qualified elder law attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

New Laws to Take Effect in 2009 to Assist California Elders

2008-12-08T08:39:00.000-08:00

As 2009 quickly approaches, several new laws affecting elder and nursing home abuse will take effect on January 1. Hopefully, they will help protect elders from financial abuse and encourage and make it easier for nursing home residents and their families to report theft and abuse in nursing homes.

Several Laws Aim to Protect Elders from Financial Abuse
Financial abuse is one of the greatest threats to elders. Whether it is by family members, nursing homes and their staff, or scam artists who are complete strangers, elders are particularly vulnerable because of their often poor health and mental state. The most important law taking effect at the start of 2009 will amend the Elder Abuse and Dependent Adult Civil Protection Act. The law’s goal is to make it easier for elders and their families to recover from financial abuse due to undue influence. Undue influence occurs when someone pressures an elder to give away money that he or she would not normally have voluntarily given.

This law also makes it easier for families to sue by extending the statute of limitations to four years. Therefore, if you believe a family member has made a financial decision due to undue influence, you now have four years in which to sue for recovery. An extra year can be very helpful because it can often take some time to discover that financial abuse has occurred.

Law Hopes to Encourage Reporting of Property Theft in Nursing Homes
Supporters of another important law taking effect January 1 hope that it will encourage elders and their relatives to report stolen property – primarily cash and valuables like jewelry – to the local police and ombudsman offices, and not just to the nursing home administration. The new law would require local police and the ombudsman to immediately report suspected or known theft and abuse to the local District Attorney’s Office.

According to San Diego County Deputy District Attorney Paul Greenwood, nursing home staff will often keep reported thefts quiet and handle such matters internally instead of going to the police. This means that property is often never recovered, because many nursing homes say that most property is simply lost and misplaced by elderly residents, as opposed to being stolen by staff.

The best way to prevent elders’ valuables from being stolen is to remove them from the nursing home and store them in a secure place. Also, family members should immediately report any missing items to the nursing home administration, but if the property is not recovered within a day, they should contact the police directly.

Thank you for reading my blog. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. If you or a loved one have been the victim of abuse, negligence, or neglect by a nursing home, contact an attorney to find out your legal rights and options. You can also contact me to discuss your matter confidentially.

$3.8 Million Budget Cut to the Ombudsman Program May Put California Elders at Risk

2008-11-13T14:00:00.000-08:00

On September 23, 2008, Governor Arnold Schwarzenegger signed the 2008-2009 California budget. A small line in this budget included a $3.8 million budget cut to the funding of the state’s long-term care ombudsman program. Retroactive to July 1, the cut removes almost half of the state’s funding for this program.

The California ombudsman program, which is mandated by both state and federal law, sends volunteers into nursing home and other long-term care facilities to monitor and investigate patient treatment and to respond to and settle complaints about nursing home abuse or neglect. State-certified volunteers do much of the work, which includes visiting nursing homes and responding to complaints by patients and their relatives. Advocates of the program say the ombudsmen help protect vulnerable elders, most of whom who have no friends or relatives to visit them and monitor their treatment.

The budget cut came just days after the Inspector General of the Department of Health and Human Services released a federal government report about nursing home abuse and neglect nationwide. While 90 percent of nursing homes around the country were found to be deficient in some way, the report revealed that a staggering 99 percent of California’s nursing homes are violating federal standards.

Budget Cut Already Forcing California Ombudsman Program Office Closures
Because the budget cut was retroactive to July 1, 2008, the effects on the ombudsman program offices are being felt immediately. Already, one of the nearly three dozen county and local offices has had to close; others have had to cut their staffs in half due to losing over half of their annual budgets. Some offices now have just two staffers left to respond to thousands of annual complaints across hundreds of facilities. One office in Northern California has even seen its budget cut completely.

These office closures will potentially have a devastating impact on the way California’s elders are treated in nursing homes around the state. Considering the federal report’s findings about the state of California’s nursing homes, many groups are concerned that already vulnerable elders are at an enormous risk for abuse and neglect that will go unreported.

Outrage in California’s Senior Citizen Community
Many advocacy and senior citizen groups have already expressed anger at this budget cut. Seniors Organizing Seniors, one of the groups that organized a protest in Sacramento, is especially concerned about the cut to the ombudsman program because of the increasing number in nursing home abuse and neglect complaints. California Advocates for Nursing Home Reform (CANHR) (http://www.canhr.org/index.html), the statewide advocacy group for nursing home patients, agrees. CANHR has also questioned the cuts because funding for the statewide ombudsman office, which oversees the program on a state level but provides no services to nursing home residents, was not cut, and none of the state office’s funds have been redirected to the local offices that are now struggling.

Seniors have vowed to keep protesting and fighting until Governor Schwarzenegger reinstates the funding to this and other programs that were cut in the budget.

Thank you for reading my blog. If you suspect that a loved one has been a victim of nursing home abuse or neglect, contact me for immediate assistance.

Update on Investigation of Elder Abuse at Calabasas Nursing Home

2008-10-15T16:03:00.000-07:00

Investigation of Death Led to Allegations of Senior Abuse

In a prior blog entry, we followed the investigation into the death of Elmore Kittower, an 80 year-old resident of Silverado Senior Living in Calabasas. Kittower’s widow, Rita, was told by a woman claiming to be a nursing home employee that her husband had been beaten and suffocated by another employee at the nursing home. This led to an investigation by the Los Angeles County Sheriff’s Department and resulted in a finding that the trauma to the body was consistent with an assault.

The Los Angeles Times reported this week that the investigation of Silverado has been expanded to include the examination of the possible abuse of three other elderly residents of the nursing home. Cesar Ulloa, a former Silverado caregiver, is alleged to have abused the three other residents. Ulloa has been charged with four counts of elder abuse and one count of torture. Ulloa entered a not guilty plea, when he was arraigned in Los Angeles Superior Court.

An autopsy performed on Kittower, the resident whose death sparked the investigation, revealed that he died due to lung blood clot. However, the report also indicated that “blunt force trauma” played a role in his death. Moreover, Kittower’s body had multiple bruises and evidence of a recently partially healed rib fracture.

Another resident of Silverado that was allegedly harmed was the mother of Keith Stubbs. Stubbs was told by authorities that his mother was awakened and forced out of bed by having her chest jumped on. Stubbs’ mother had a brain condition that prevented her from being able to speak, preventing her from reporting any possible abuse.

Ulloa’s other alleged victims are two other Silverado residents, Richard McDonough and Robert Turner. Turner’s nephew, Richard Skowronek, indicates that he was told by authorities that, at the very least, his uncle was punched in his stomach.

A spokesman for Silverado, Mark Mostow, said that the company screens its potential employees, which includes background checks, and that all employees undergo an elder-abuse reporting program that the California Department of Justice conducts. Mostow indicated that Ulloa, who Silverado fired last year, seemed to have a friendly and outgoing demeanor that was well received by the families of residents of Silverado.

Stubbs indicated that he did not suspect that his mother had been abused. However, in retrospect Stubbs noted he started seeing bruises on his mother’s arms and neck even prior to Ulloa beginning work at the nursing home, and that more recently he noticed that his mother recoiled when visiting loved ones touched her, which she had not done previously.

The California Office of the Attorney General reports that between 2005 and 2006, there were 108 criminal filings and 60 convictions involving elder abuse, and 25 civil complaints filed and 22 civil judgments. A total of $4,806,652 was awarded in those years in restitution and penalties, from both criminal and civil cases.

Families of nursing home residents must be vigilant in their observations to protect their loved ones from possible abuse. The California Attorney General’s Crime and Violence Prevention Center suggests that you look for the following possible indicators of abuse:

Physical indicators

Unexplained bruises or welts
Poor skin condition or poor skin hygiene
Untreated medical condition
Cuts, pinch marks, skin tears, lacerations or puncture wounds
Bruises or welts in various stages of healing

Behavior Indicators

Confusion, withdrawal, fear, or anger

Social Indicators

Interaction or activity within the family is restricted or prohibited
Not given the opportunity to speak for him/herself or see others without the care-giver present

Financial Indicators

Lack of amenities - TV, personal grooming items, appropriate clothing

For further information on the warning signs of elder abuse, visit the California Attorney General’s Crime and Violence Prevention Center at www.safestate.org.

Thanks for reading my blog. If you suspect that a loved one has been a victim of nursing home abuse or neglect, contact me for immediate assistance.

Governor Schwarzenegger Signs Elder Abuse Bills into Law

2008-09-29T18:06:00.000-07:00

California Governor Arnold Schwarzenegger signed several bills designed to protect the elderly into law this week. The new laws provide a plan for the elderly in the event of a disaster and offer greater protection for the elderly from financial elder abuse. The following is a brief synopsis of these new laws:

Two bills targeting nursing home and residential care facilities were signed this week:AB 2370 is aimed at preventing nursing homes from hiking their rates without notice. The law requires residential care facilities to annually post information regarding recent rate increases, requires the disclosure of rate increase information to new residents, and, upon request, to requires the disclosure of rate increase information to prospective residents.

AB 749 is designed to protect the elderly in the event of a disaster or major power outage. The law requires residential care facilities to have a comprehensive emergency plan by March 1, 2009 that provides that the facility will be self-reliant if necessary for at least 72 hours. The plan must be available to residents and emergency personnel.

The following bills are designed to offer greater protection from physical abuse to the elderly and their families:

AB 2100 is designed to encourage people to come forward with suspicions of elder abuse. The law requires ombudspersons at long-term care facilities to report cases of alleged or suspected physical abuse, including sexual abuse, and financial abuse to the local district attorney’s office.

AB 225 applies to restraining orders issued in elder abuse cases. The law extends the protection of a restraining order to include named family members, household members and conservators of the elder abuse victim.

The following three bills are aimed at those who run scams targeting the elderly or are engaged in financial elder abuse:

SB 1136 makes it a misdemeanor to charge an “unconscionable fee” to qualify a person for a public social service benefit, including Medi-Cal.

AB 2149 regulates the use of “expertise” designations and requires advisors to take training courses before holding themselves out as having specialized knowledge regarding the financial needs of seniors. The bill is designed to prevent the elderly from falling prey to unscrupulous financial advisors who claim to be experts on financial planning for the elderly.

SB 1140 extends the statute of limitations for a claim for damages due to financial elder abuse to four years from the plaintiff discovers, or should have discovered, the abuse. Presently, the statute of limitations on such a claim is three years. In addition, the definition of financial abuse of an elder is expanded to include the action of taking, appropriating, obtaining or retaining, real or personal property by undue influence.

Thanks for reading my blog. If you suspect that a loved one has been the victim of physical, financial or sexual elder abuse, contact me for assistance.

Class Action Lawsuits Against Nursing Homes

2008-09-02T16:21:00.000-07:00

This week a class action lawsuit against the corporate owner of a group of nursing homes in Southern California was settled for $2 million. The lawsuit was filed on behalf of residents who were promised a high level of care by the nursing home operator. The lawsuit alleged that while the residents were promised quality care, the nursing homes were understaffed and the owners knew they could not provide the promised level of care given their level of staffing. The residents sued, alleging the owner’s conduct constituted fraud. During the course of the lawsuit, it was discovered that one of the nursing homes in question had 77 health and safety violations within the past four years.

A similar class action lawsuit has recently been filed in the state of Washington against the corporate owner of 15 nursing homes in Washington, accusing the owner of luring residents in with false advertising and charging for services that were never provided. The lawsuit also alleges that the nursing homes were understaffed and that the quality of care suffered as a result of understaffing.

A nursing home class action lawsuit is a lawsuit brought by an individual resident or a group of residents, on behalf of a much larger group with the same or similar problem or complaint. A class action lawsuit is typically brought where others have been injured in the same manner and it is too expensive or impractical to bring an individual lawsuit. Nursing home class action lawsuits serve an important function in that they provide oversight and force nursing home owners to improve the quality of the care they provide.

Nursing homes are in the business to earn a profit, and in striving to maximize their profits, many nursing homes fail to maintain an appropriate level of staffing and are seriously understaffed. There is a direct correlation between the quality of care and the level of staffing; if a facility doesn’t have enough staff, the incidences of elder abuse and neglect are significantly higher. When you are considering a nursing home facility, be sure to ask about the staff to resident ratio.

If you or a loved one have been the victim of abuse, negligence or neglect by a nursing home, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

Fairness in Nursing Home Arbitration Act

2008-07-27T22:40:00.000-07:00

Earlier this week the House Judiciary Subcommittee on Commercial Law and Administrative law approved the federal Fairness in Nursing Home Arbitration Act, which would preclude nursing homes from forcing patients to sign an arbitration agreement prior to a dispute. Consumer advocates including the AARP and the Alzheimer’s Association supported the Act. The Act doesn’t preclude binding arbitration as an option in the event of a dispute, but instead requires the decision to be made by both parties after a dispute occurs.

Arbitration is an alternative method of dispute resolution that does not require going to court. Instead of a court proceeding, an arbitrator is appointed to hear both sides of the dispute and issue a ruling. The arbitrator considers both federal and state law when resolving the dispute. Advocates of arbitration say it provides a faster resolution and is less expensive for both the nursing home and the resident. Critics of arbitration note that arbitrators are less likely to rule for the plaintiff, and if they do, the awards are generally smaller. Critics also note that since arbitration is confidential, it leads to less accountability on the part of the nursing home, and shields the nursing home owner from the consequences of allowing abuse or neglect to occur.

The Fairness in Nursing Home Arbitration Act (the “Act”) was designed to prevent patients from signing away their right to have a dispute heard in court. The Act recognizes that entering a nursing home can be a stressful event, and often occurs after a patient has experienced a serious or long illness. The patient may also be under medication that impairs their judgment or ability to understand the admission documents. In the State of California, nursing homes are not permitted by law to include an arbitration clause in their contracts for admission of a patient. However, most nursing homes do have an optional arbitration clause provision that they attach to the admission contract as an attachment or addendum. Many patients sign this attachment without fully understanding their rights or that they have waived their right to a trial before a judge or jury.

The Act invalidates any pre-dispute arbitration agreement between a nursing home and resident. Some members of the committee attempted to modify the bill, by trying to ensure that the bill would not be retroactive, or by attempting to exclude nursing home physicians. These modifications were rejected. The committee’s approval of the Act makes it one step closer to becoming law. I will keep you posted on further developments.

If you or a family member is entering a nursing home, read all of the admission documents carefully. If you don’t understand something, don’t sign it until you’ve consulted an attorney. Remember, under California law, they can’t make you sign an arbitration clause as a condition to admission.

Thanks for reading. If you have a question or comment, please feel free to post it here. If you have a question or need assistance with a potential claim against a nursing home or assisted living facility, contact me for a confidential consultation.

New Rating System for Nursing Homes

2008-06-24T13:22:00.000-07:00

The Centers for Medicare and Medicaid Services (CMS) announced this week the implementation of a new rating system for nursing homes. Nursing homes will soon be rated on a 5-star scale, similar to the way hotels and restaurants are currently rated by critics, with one star being the lowest rating and five stars the highest possible rating. The new system is designed to assist families in determining the best facilities in their area. The new system will appear on Medicare’s “Nursing Home Compare” Web site, hopefully before the end of 2008.

Nursing Home Compare basic staffing information, general findings of inspection reports for the past three years, and a list of quality indicators. Quality indicators include the percentage of residents subject to some form of restraint; percentage of residents with pressure sores; and percentage of residents who have lost too much weight. Some have criticized the current Web site as being difficult to navigate.

The new system is designed to make it easier for consumers to evaluate a home and distinguish one facility’s performance from another. Proponents of the new system believe it will hold nursing homes accountable and force underperforming facilities to improve their standard of care.

CMS is currently holding a period of public comment to determine the best method of translating inspection reports and quality indicators into star ratings and to allow the public to suggest other information that should be included in the ratings. Many hope that the ratings will take into consideration resident satisfaction surveys, which most homes already conduct on an annual basis. Advocates of including these survey results in the ratings state that it is important to give the families of the residents some input in the facility’s rating. The first ratings are expected to be completed by December. Ratings will be updated quarterly.

Regardless of the new rating system, it is important to personally check out a nursing facility. A rating system should not be a substitute for your own observations and best judgment. If you have a comment, feel free to post it here, but keep in mind your posting will not be confidential. If you have a question or need assistance with a matter involving a nursing home or assisted living facility, call my office for immediate assistance. Thanks for reading my blog.

Use of Restraints in California Nursing Home Highest in United States

2008-05-23T17:24:00.000-07:00

Federal Nursing Home Reform Act of 1987
Nursing homes that receive Medicare or Medicaid must comply with the Nursing Home Patients Bill of Rights as provided by the Federal Nursing Home Act of 1987. Among these rights is the right to be free from unreasonable restraints. The Federal Code, under 42 CFR 483.13, subsection (a), states that nursing home residents have “the right to be free from any physical or chemical restraints imposed for purposes of discipline or convenience, and not required to treat the resident's medical symptoms.”

Nursing Home Restraints Since 1987
The use of restraints in nursing homes has declined overall since the passing of the Federal Nursing Home Reform Act of 1987. Their use decreased almost 40% during the period between 2002 through 2006. According to the Federal Agency for Healthcare Research and Quality, only 5.9% of United States nursing home residents were restrained in 2006 compared to 9.7% in 2002. Some states did better than others. Nursing homes in California were among the worst offenders with 13.4% of residents being repeatedly restrained. Fortunately, not all nursing home in California restrain residents at this rate. Most comply with the Federal Law. However, you may not have much time to find a nursing home for a loved one. You may have as little as 24 hours after a hospital stay to find a good facility. The AARP Magazine has compiled a list of ten essential tips one should follow when choosing a nursing home. To view the list, click the following link: http://www.aarpmagazine.org/health/embedded_sb.html

Potential risk of restraint related injury exists even if you are careful when selecting a home. Be sure to visit your loved one and inspect the facility regularly to make sure things are going well and that your loved one's risks are minimized.

Restraint Injuries
Residents of nursing homes are restrained for different reasons. For example, a resident may be restrained to prevent a fall or to prevent injury. Sometimes residents are restrained to keep them from rolling out of bed or to keep them seated in a chair. Often facilities will use restraints because of staffing shortages, staff inexperience, or just plain laziness. Restraints that have been used by different facilities include belt restraints, vest restraints, mittens, and wrist restraints.

Mechanical restraints such as straps, tie-downs, and bed rails are designed to limit mobility. If they are not used correctly, they can cause strangulation and death. Pressure ulcers (bedsores), incontinence, and confusion can also be caused by the misuse of these restraints. Long term use of mechanical restraints has been known to cause emotional distress, loss of strength, and depression. Nursing homes should never use restraints as a cost-cutting measure. They are not a substitute for the proper number of trained staff. Restraints should only be used if a doctor determines that they are necessary.

If loved one has been unreasonably restrained and has suffered injuries, you should contact a lawyer to protect his or her rights. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

Medi-Cal Benefit Increase for Nursing Homes Fails to Improve Care

2008-04-21T15:14:00.000-07:00

In 2004, California legislatures passed a law that provided California nursing homes with $590 million by raising Medi-Cal (California’s Medicaid program) payments. The purpose of this law was to give nursing homes more financial resources to help poor residents. From 2004 through 2006, a UC-San Francisco study found that nursing homes not only received the $590 million, but their total revenues rose by $1.1 billion.

The increase in funding and profits does not appear to have translated into better care. The same UCSF study reports the following statistics in 2006:

1. A 3.6% decrease in nursing home spending on direct patient care

2. A 6% increase in state and federal citations of nursing homes

3. A 38% increase in complaints of patient mistreatment

4. 16% of nursing homes still did not meet California’s minimum staffing levels

5. 88% of nursing homes did not comply with federal regulations

6. 22% of nursing homes had violations that harmed patients or jeopardized patient care

The study also found that nursing assistant wages increased an average of 71 cents per hour (or 6%), licensed nurses increased by 9% and administrators pay rose by 13%. Nursing homes also enjoyed a rise in net profits of 233% to $248,047.

Nursing Home Residents Bill of Rights
The California Health and Safety Code, Section 1771.7(b) provides that all residents in residential living units (such as nursing homes) shall have all of the following rights:

1. To live in an attractive, safe, and well maintained physical environment.

2. To live in an environment that enhances personal dignity, maintains independence, and encourages self-determination.

3. To participate in activities that meet individual physical, intellectual, social, and spiritual needs.

4. To expect effective channels of communication between residents and staff, and between residents and the administration or provider's governing body.

5. To receive a clear and complete written contract that establishes the mutual rights and obligations of the resident and the continuing care retirement community.

6. To maintain and establish ties to the local community.

7. To organize and participate freely in the operation of resident associations.

The increase in funding was meant to help California nursing homes comply with California statutes such as Section 1771.7(b). It appears from the UCSF study that nursing homes have not really improved; while administrator salaries benefitted from the influx of funds, patient care actually became worse. It is important to keep a watchful eye on your loved ones who reside in nursing homes. Be especially on the look-out if the nursing home has difficulty keeping staff. With nursing assistant wage increases not even keeping up with inflation, a high turn-over is likely, leading to poorly trained employees and a high likelihood of neglected patients. If any of the rights listed above has been violated, it is important that you consult an elder law attorney as soon as possible.

Thanks for reading our blog. If you have a question or comment, feel free to respond to this posting, but keep in mind that any response will not be confidential. If you or a loved one is a victim of elder abuse and have questions on how to protect your rights, contact us for a free, confidential consultation.

Financial Elder Abuse-Mortgage Scams

2008-04-01T15:46:00.000-07:00

Several people in Southern California were recently arrested for mortgage fraud. Many of their victims were elderly people who didn’t realize they were being scammed, and ultimately lost their homes. For many seniors, their primary asset is their home. Seniors are also a likely target for mortgage loan fraud or being defrauded out of title to their property; many seniors have homes which are fully paid for or have substantial equity in their homes.

Help is Available
If you receive a letter from a mortgage company informing you of a mortgage that you never applied for, or if you receive a notice from the County regarding the recording of a deed to your property, call the San Diego City Attorney’s Consumer Hotline at (619) 533-5600 Monday through Friday, 9-11am or 1-3pm.

Points to Consider
Some lenders have violated consumer protection laws by offering loans to seniors that do not fully disclose the costs associated with the loan. Lenders are required by law to disclose all loan costs and payment amounts. If you are considering refinancing your home, be aware of the following:

Don’t be pressured into signing anything until you have had the opportunity to review all the disclosures. Review all fees, payments and closing costs carefully before you sign.

Never sign anything without being fully aware of the consequences of what you’re signing. If in doubt, don’t sign. Have someone you trust review the documents with you.

Don’t give out personal information, such as your social security number, to a loan salesperson. You could be exposing yourself to identity theft.

Don’t take loans out on your house to loan someone else, such as a caretaker, money. If the person doesn’t repay you, you will be placing yourself in financial jeopardy.

Don’t transfer title to your house to someone else without consulting with your attorney first. There may be tax consequences to such a transfer that you didn’t contemplate. Don’t put a caregiver or someone else on title to your home; they may take out loans against your home, and if they fail to make the payments on the loans, you could lose your house in foreclosure.

If you feel you have been the victim of loan fraud, contact an attorney to find out your legal rights and options. If you have a question or comment, feel free to respond to this posting, but keep in mind your response will not be confidential. You can also call or e-mail me to discuss your matter confidentially. Thanks for reading.

The Worst Nursing Homes

2008-02-21T11:50:00.000-08:00

There are approximately 16,400 nursing homes nationwide, and each year American taxpayers spend about $72.5 billion annually to subsidize nursing home care. With the amount of resources devoted to nursing home care, one would hope that patients are receiving quality care. Unfortunately, not all nursing homes are safe. This month the Bush administration released the names of 131 nursing homes that rank among the worst in the nation. The list released by the Centers for Medicare and Medicaid Services (CMS) names facilities identified as a “special focus facility”, meaning the home has a poor inspection record meriting additional governmental oversight. These homes are subject to inspection every six months rather than once a year.

Typical offenses include overmedicating patients or unnecessary medications for elderly patients, and inadequate safeguards for patients with Alzheimer’s or dementia from everyday hazards in the nursing home. While most nursing homes have some deficiencies and may receive six or seven noted deficiencies per inspection, the homes on the list averaged twice as many deficiencies. In order to be placed on the list, the home must show a demonstrated pattern of serious problems for occurring over a prolonged period of time.

The director of the CMS encourages patients and their families to use the list to enhance their awareness of any deficiencies with a facility, but cautions that “there is no substitute for visiting the nursing home in person.” The CMS notes that publicity about a home’s problems often leads to improvements within the facility; out of 54 homes listed as poor performers in a November 2007 study, 21 showed improvement. However, about 16 percent do not improve and are eventually terminated from Medicare and Medicaid. The list will be updated every quarter, with the next list to be made public in April of 2008.

To view the February 2008 list of the worst nursing homes in the nation in pdf format, visit http://www.cms.hhs.gov/CertificationandComplianc/Downloads/SFFList.pdf.

Planning for Incapacity

2008-01-21T15:16:00.000-08:00

When most people contemplate estate planning, their primary concern is what will happen to their estate when they pass away. However, proper estate planning also provides a plan for what will happen if you become incapacitated. If you become physically and /or mentally incapacitated due to an accident, injury or illness, who will manage your financial affairs or make medical decisions on your behalf? If you have your estate plan in order, your estate planning documents will have considered this contingency and will provide a thorough plan for incapacity.

Living Trust: The successor trustee of your living trust will assume the role and duties of the trustee upon your incapacity. Keep in mind, however, that the successor trustee will only have access and control over those assets that are held in the living trust; if you hold assets outside of your living trust, your successor trustee will not have control over those assets.

General Durable Financial Power of Attorney: Even if you have a living trust, and hold all or most of your assets in your trust, you should also have a financial power of attorney which is durable, meaning it is still valid even if you subsequently lose capacity. The power of attorney will authorize the agent named in the document to manage your financial affairs, including transferring assets into your living trust, signing your tax return, negotiating with insurance companies and financial institutions on your behalf, and making other important financial decisions on your behalf.

Advance Health Care Directive: This document allows you to appoint an agent or agents who will make medical decisions on your behalf. This document will also allow you to specify in advance your preferences regarding medical treatment. For example, you could specify that your primary care physician is to be consulted regarding your treatment, or you could specify that you do not want to be kept permanently dependent on life support if you are in a persistent vegetative state.

What happens if you fail to plan, and you become incapacitated? Unfortunately, estate planning attorneys are often contacted after a family member or loved one has already become incapacitated. If the client lacks the legal capacity to create an estate plan, the alternative is to file for a conservatorship. There are two types of conservatorships in California:

Conservatorship of the Person (to authorize the conservator to make medical decisions, arrange housing and care of the conservatee, etc.); and
Conservatorship of the Estate (to authorize the conservator to invest the assets of the conservatee, pay the conservatee’s bills, and handle the conservatee’s finances).
The same person may serve as conservator of the person and of the estate.

Conservatorships require a formal court proceeding and the court will continue to oversee the administration of the conservatorship for as long as the conservatee is incapacitated, or until the conservatee dies. This process is often criticized as it is costly, time consuming, burdensome and subjects information about the conservatee’s finances and mental and physical condition to public scrutiny. With proper advance planning, a conservatorship may be avoided entirely.

Incapacity due to illness, accident or injury can strike at any time. It is advisable to review your estate planning documents to make sure you are adequately protected in the event of incapacity. If you have any questions, please contact me, or feel free to leave a general response to this posting. Thanks for reading.

Evaluating Nursing Homes

2007-12-17T10:25:00.000-08:00

Welcome to my blog. I will be posting information related to elder law and estate planning. I hope you find my blog to be both interesting and informative.

In today’s Los Angeles Times, there is an article entitled “A Nursing Home Death, and a Shocking Phone Call.” Elmore Kittower was an 80 year-old resident of Silverado Senior Living in Calabasas who passed away suddenly last month. His 83 year-old widow, Rita, was told by a staff member of the facility that “He just stopped breathing.” The day after Elmore’s funeral, Rita received a telephone call from a woman claiming to be an employee of the nursing home. She informed Rita that her husband had been beaten and suffocated by another employee at the nursing facility. Days later, detectives from the Los Angeles County Sheriff’s Department requested Rita’s permission to exhume Elmore’s body. Sources close to the investigation confirmed that there was trauma to the body consistent with an assault.

Rita made the decision to find a nursing facility for Elmore after he suffered a massive stroke and became combative. She perused literature and visited dozens of nursing homes before selecting Silverado Senior Living. Rita admits the $75,000 a year expense for a semi-private room was a hardship, but states “But it was a beautiful place, like a five-star hotel.”

The decision to place a loved one in a nursing facility is never easy. How do you ensure that the facility you are entrusting with the care of your loved one will provide a safe and caring environment? Here are some resources you can consult:

Thanks for reading. Please contact me if you have specific questions, or feel free to leave a general comment in response to this posting.