Hanlon Niemann Blog | A Freehold, New Jersey Law Firm

It is not uncommon for the elderly to become victims of financial abuse. They may be losing — or already have lost — some of their cognitive ability, and their judgment may be clouded. The perpetrator can be anyone from a stranger to a friend, caretaker, relative, or trusted financial advisor.

“As people grow older, they grow dependent on others for care, and part of that care means someone must help them with their finances,” says Larry Pickard, who supervises the unit that deals with financial abuse of the elderly at San Francisco Adult Protective Services.

I have seen this financial abuse in the course of my own work helping the elderly organize their finances.

Recently, Mr. Smith (all names in this article have been changed) was 101 years old and living independently in an upscale facility in Fairfield County, Connecticut. None of his children or relatives lived nearby. About three years ago, a family friend started helping him with his bill-paying and financial organization.  He visited him twice a month to sort through his mail and help him decide what was junk and what he needed to read. He also took all the bills back to my office to prepare the checks. During the entire time he worked with him, Mr. Smith was very independent, but he was starting to slow down physically. A few months ago, he fell, and it became obvious that he needed 24/7 care to stay out of assisted living. He gave in to having what he referred to as “24-hour surveillance.”

The home health aide, Maria, came from an agency and was recommended by the facility. She took good care of Mr. Smith, helping him bathe and dress, and staying constantly by his side. She won his trust and confidence. But then . . .

Maria started having Mr. Smith write checks payable to cash for drug store supplies and the few groceries he needed. She also started paying some of the bills, which the family friend believed is how she convinced him to sign the checks over to her. Maria then endorsed the checks with her own signature and deposited them to her own checking account. Since the family friend wasn’t a signer on his checking account, he didn’t notice this until it was too late. By the time the bank statement arrived, there was a total of $16,000 in either forged checks or checks Mr. Smith had been coerced to sign.

The family friend reported this to the police and Maria was fired from the agency. Since the agency was bonded, it had to make good on the losses. Unfortunately, Mr. Smith was devastated to learn that someone he trusted took such advantage of his sweet, trusting, and generous nature. A few weeks later, Mr. Smith passed away. It was terrible for him to spend his final weeks knowing about this crime.

Family Members Often the Culprits

Financial abuse of the elderly knows no boundaries. It can occur when someone steals or embezzles money, Social Security checks, or other property from an older person. It can be as simple as taking money from a wallet or manipulating a victim to turn over or sell personal property or belongings. In many cases, the financial abuse is done by someone the victim knows and trusts. Family members commit more than half of the crimes of financial abuse of the elderly, according to the National Association of Adult Protective Services Administrators.

Sometimes the abuser has gambling, substance abuse, or financial problems. After Mrs. Green’s daughter passed away suddenly at age 50, her teenage granddaughter stole her grandmother’s credit cards and charged, with interest, more than $20,000. Mrs. Green’s surviving daughter took her mother’s medications to feed her own substance abuse problem. This daughter also stole money, perhaps thinking it was “rightfully” hers. Mrs. Green could barely make ends meet, and the fact that her own relatives were stealing from her made it even worse.

Often the elderly are afraid to report this abuse, fearing that their children will consider them too demanding or unfit to handle their finances. They may fear losing an important part of their independence and can be embarrassed that they can’t handle the situation themselves. Mrs. Green did not want to report these crimes, because she was afraid of alienating her only surviving daughter and getting her granddaughter into more trouble. She was also depressed over the loss of her daughter.

Americans over the age of 55 control 70 percent of the nation’s wealth. Many of the elderly do not realize the value of their assets and how those assets make them vulnerable. A recent FBI investigation found that fraudulent telemarketers were directing nearly 80 percent of their calls to seniors; the elderly are often dependent on others for help, and a “helpful” voice at the end of the telephone line can exert a significant influence.

How to Detect Financial Abuse and What to Do About It

There are many signs to watch for in detecting financial abuse of the elderly. Someone could force an elderly person to sell or give away property or to sign a power of attorney. Valuable objects may start to disappear. There may be unusual activity in bank accounts, such as sudden withdrawals of large amounts, many checks made out to cash, and low bank balances when there should be plenty of available funds. A new “best friend” or “sweetheart” might appear on the scene. Signatures on checks do not resemble the older person’s signature. A name may be added to an older person’s bank account.

There are several ways to prevent this financial abuse. One way is to have several family members be involved with the older person. Encourage the elderly to become involved with the community, senior centers, or religious groups, which all can provide a strong support system. Take advantage of direct deposit of income checks, including Social Security and dividends. Carefully screen and verify caregivers’ references and do a thorough background check.

Advocates for Nursing Home Reform estimate that only one in six cases of financial abuse is ever reported. Any person who suspects that financial abuse has occurred should report it either to her local police department or to a trusted social worker or adult child, assuming the child is not also the abuser. When in doubt, err on the side of caution. Financial abuse can continue and can escalate if there is no intervention. Reporting the abuse and intervening in time can save the assets, health, and dignity of the elderly. 

If you have questions about this article, contact Fredrick P. Niemann, Esq. at FNiemann@hnlawfirm.com or call him at 732-863-9900.

Costs for nursing homes, assisted living facilities and some in-home care services have risen for the fifth consecutive year and might continue to rise unless more long-term care workers can be found, according to a new survey by Genworth Financial.

A private room in a nursing home now costs $76,460 a year or $209 daily, a 17 percent increase since 2004, Genworth’s 2008 Cost of Care survey found. A semiprivate room in a nursing home is now $68,408.

The cost of assisted living facilities is shooting up even faster, having risen 25 percent since 2004 to a current average of $36,090 a year for a one-bedroom unit. Assisted living costs ranged from a high of $4,921 a month in New Jersey to a low of $1,981 a month in Arkansas.

While the cost of in-home care by workers who are not certified by Medicare remained about the same, at an average hourly rate of $18 for homemaker services and $19 for home health aide services, the cost of a Medicare-certified home health aide rose to an average $38 an hour.

The survey also priced adult day care for the first time, finding that the daily cost is averaging $59, or about $15,000 a year for five days a week of care.  Adult day care facilities provide care and companionship outside of the home and give the elderly a chance to interact with peers. Sometimes based in a community center, the facilities can provide social or therapeutic activities and provide supervision for participants with cognitive problems.

The study, which was conducted by CareScout on behalf of Genworth, surveyed more than 40,000 providers in all 50 states and the District of Columbia between December 2007 and February 2008.

Genworth Financial sells long-term care insurance policies. Buck Stinson, president of Genworth’s long-term care insurance unit, said the results of the Cost of Care survey indicate that “the expense of just a few years of long-term care in a facility or at home can very quickly wipe out a lifetime of savings.”

In a companion report, Genworth says that the nation faces an impending caregiver shortage that could drive costs even higher.

Genworth’s Cost of Care survey features an interactive map allowing consumers to see long-term care costs and trends in their state. For both the survey and caregiver report, click here.

While you generally do not have to sell your home in order to qualify for Medicaid coverage of nursing home care, it is possible the state can file a claim against your house after you die. If you get help from Medicaid to pay for the nursing home, the state must attempt to recoup from your estate whatever benefits it paid for your care. This is called “estate recovery,” and given the rules for Medicaid eligibility, the only property of substantial value that a Medicaid recipient is likely to own at death is his or her home. If possible, you should consult with an attorney before entering a nursing home, or as soon as possible afterwards, in order to discuss ways to protect your home.

In those states that have implemented the Deficit Reduction Act of 2005, the home is not counted as an asset for Medicaid eligibility purposes if the equity is less than $500,000 ($750,000 in some states). In all states, you may keep your house with no equity limit if your spouse or another dependent relative lives there.

Transferring a Home
In most states, transferring your house to your children (or someone else) may lead to a Medicaid penalty period, which would make you ineligible for Medicaid for a period of time. There are circumstances in which it is legal to transfer a house, however, so consult an attorney before making any transfers. (For example, transfers to a disabled child or one who qualifies as a “caregiver child” are permitted.) While you can sell your house for fair market value, it may make you ineligible for Medicaid and you may have to apply the proceeds of the sale to your nursing home bills.

Lien on Home
Except in certain circumstances, Medicaid may put a lien on your house for the amount of money spent on your care. If the property is sold while you are still living, you would have to satisfy the lien by paying back the state. The exceptions to this rule are cases where a spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house is living there.

Estate Recovery
If your spouse, a disabled or blind child, a child under age 21, or a sibling with an equity interest in the house, lives in the house, the state cannot file a claim against the house for reimbursement of Medicaid nursing home expenses. However, once your spouse or dependent relative dies or moves out, the state can try to collect.

But there are some circumstances under which the value of a house can be protected from Medicaid recovery. The state cannot recover if you and your spouse owned the home as tenants by the entireties or if the house is in your spouse’s name and you have relinquished your interest. If the house is in an irrevocable trust, the state cannot recover from it.

In addition, some children or relatives may be able to protect a nursing home resident’s house if they qualify for an undue hardship waiver. For example, if your daughter took care of you before you entered the nursing home and has no other permanent residence, she may be able to avoid a claim against your house after you die. Consult with an attorney to find out if the undue hardship waiver may be applicable.

The average annual price of a private U.S. nursing home room has increased to $76,460 this year, up 2% from the 2007 average.

Researchers at Genworth Financial Inc., Richmond, Va., have published that finding in a summary of results from their latest survey of nursing homes, assisted living facilities, home care providers and, for the first time, adult day care providers.   A total of about 10,000 providers participated.

The cost of a semiprivate nursing home rose 4%, to $68,408, while the cost of an hour of care from a non-skilled home health aide held steady at about $19, the Genworth researchers report.

The hourly cost of care by a skilled, Medicare-certified provider increased 18%, to $38.
Adult day care cost about $59 per hour.

Use It or Lose It; Ways to Cope With Memory Loss

No matter how “normal” memory lapses may be, let’s face it, that doesn’t make them any less frustrating. Experts agree that the best way to keep your brain fit is to keep using it.

“People should realize that they have more control than they think, that one-third [of memory loss] is genetics, that means we have the potential to influence a large component of our brain aging,” Gary Small, MD, author of The Memory Bible: An innovative Strategy for Keeping Your Brain Young, and director of the Memory and Aging Research Center at the UCLA psychiatric institute told WebMD.  “The sooner we get started, the sooner we’re going to benefit from it.”

Small emphasizes four things in his books to slow down brain aging: mental activity, physical fitness, stress reduction, and healthy diet. “People who eat too much are at risk for high blood pressure, high cholesterol, diabetes, and other conditions that increase their risk for small strokes in the brain. Secondly, you want to have a diet that’s rich in antioxidants.” Small says antioxidants help protect brain cells and exercise helps with overall health.

Staying intellectually and socially engaged are “probably the most important things you can do to help extend and maintain your cognitive abilities for a longer period of time in life,” Zola says. Challenging oneself by learning new things, reading, and taking up hobbies keep the brain active and strong for the long haul.

Some other things you can do to improve memory include:

• Focus your attention. Forgetfulness may indicate that you have too much on your mind. Slow down and focus on the task at hand. Small says multitasking and not paying attention are some of the biggest causes of forgetfulness, especially in younger people.
• Reduce stress. Stress can endanger the brain areas involved with memory processing and impair memory.
• Choose to snooze. Zola says sleep is important because fatigue can affect memory and concentration in any age group.
• Structure your environment. Use calendars and clocks, lists and notes, and write down daily activities on a planner or use an electric organizer. Store easy-to-lose items in the same place each time after using them. Park your car in the same place at the office each day.
• Try memory tricks. To remember a person’s name, repeat it several times after being introduced. Use the same personal identification number (PIN) for all of your accounts if necessary.

When to See a Doctor
Alzheimer’s disease is a progressive condition that damages areas of the brain involved in memory, intelligence, judgment, language, and behavior. While there is no definitive way to pinpoint an Alzheimer’s brain — short of autopsy — there are some diagnostic ways doctors distinguish normal memory loss from that which should raise concern. Normal forgetfulness includes:

• Forgetting parts of an experience
• Forgetting where you park the car
• Forgetting events from the distant past
• Forgetting a person’s name, but remembering it later

While research shows that up to half of people over age 50 have mild forgetfulness linked to age-associated memory impairment, there are signs when more serious memory conditions, such as Alzheimer’s disease, are happening, including:

• Forgetting an experience
• Forgetting how to drive a car or read a clock
• Forgetting recent events
• Forgetting ever having known a particular person
• Loss of function, confusion, or decreasing alertness
• Symptoms become more frequent or severe

Still confused? Zola sums it up. “The kind of rule of thumb that’s kind of whimsical in a sense but clinicians often use is, if you’re worried about [your memory], it’s probably not that serious, but if your friends and relatives are worried about it, then it probably is more serious.”

By Cherie Berkley, MS
Reviewed by Louise Chang, MD

________________________________________
SOURCES: Stuart Zola, PhD, director, Yerkes National Primate Research Center, Atlanta; professor, psychiatry and behavioral sciences, Emory School of Medicine, Atlanta. Gary Small, MD, director, Memory and Aging Research Center, UCLA Neuropsychiatric Hospital & Institute; author, The Memory Bible: An innovative Strategy for Keeping Your Brain Youn. WebMD Medical Reference from Healthwise: “Alzheimer’s Disease.” WebMD Medical Reference from Healthwise: “Confusion, Memory Loss, and Altered Alertness.”
 

Before you diagnose yourself with Alzheimer’s disease, take heart: Experts say some memory lapses are actually normal.

They say that memory is the second thing to go as you get older. So what’s the first? Umm, I forgot! And actually, by the time you reach the end of this story, you may remember only a fraction of it.  Not to worry, you’re not alone.

Experts say that mild memory loss is perfectly normal — especially as we age. That’s right, if you sometimes forget simple things, you’re not necessarily developing Alzheimer’s disease. There is a gang of people walking around just like you who occasionally misplace their keys, have that deer-in-headlights look as they search for their cars in parking lots, and can’t recall the name of one new person they met at their last office party — yes, the one from last night. And there’s a reason for those character-themed floors coupled with the happy-go-lucky music in Disney amusement park parking garages.
 
“If we have forgotten an appointment, we begin thinking, ‘Uh oh, is this the first sign of Alzheimer’s disease?’ and we become much more conscious, and it gets kind of a disproportionate amount of attention when it really may be something quite benign,” Stuart Zola, PhD, professor of psychiatry and behavioral sciences at the Emory School of Medicine and director of Yerkes National Primate Facility in Atlanta tells WebMD.

Memory is the ability to normally recall the facts and events of our lives, and this takes place in three stages:

• Stage 1: Encoding. This is when a person takes information in.
• Stage 2: Consolidation. This is when the brain takes the information it encodes and processes it so that it gets stored in certain areas of the brain.
• Stage 3: Retrieval. When a person recalls stored information in the brain.

But differentiating between normal memory loss and Alzheimer’s disease can be puzzling for a layman; the kind of memory that is affected in day-to-day situations is also the kind affected in the early stages of Alzheimer’s disease.

Time: Memory’s Worst Enemy
Fear not, memory loss and brain aging are a natural part of getting older. “It is often the case that people will start to report in their 50s that they think their memories are slipping,” says Zola, a research career scientist who has dedicated his work to memory function. “They seem to be consciously aware of that because they have to use more kinds of reminders or more kinds of strategies to remember things.”

But memory loss can happen even before we hit our 50s. Many people even in their 20s and 30s have forgotten a name or an appointment date or some fact that was on the “tip of their tongue.” Memory is tricky, and time is its worst enemy, says Zola. In fact, shortly after taking in information, memory traces begin to deteriorate, he explains. “Some things begin to fade right away, other things fade less quickly, and they’re a bunch of different forgetting curves with different rates of forgetting depending the nature of the material, depending on how important it is for you, depending on your stress level, depending on … all of the things that can affect memory.”

If you’ve ever gotten into heated debate with someone about how a past event or experience transpired, there’s a likely reason. You may think you have a vivid memory of an experience, but studies show that after awhile, people probably don’t remember events as they actually happened. Memory distortion — also a side effect of father time — explains this. This is the phenomenon where as time passes our ability to accurately recall events becomes diminished — and the longer the period of time that passes between the event and trying to recall it, the greater the chance we’re going to have some memory distortions and forgetting. Sometimes time distortion causes us to forget the event totally, Zola explains.

Other Causes of Memory Loss
But even if you think your slips of the old noggin aren’t normal, there could be other reasons for it short of Alzheimer’s disease, including:

• Stress and anxiety
• ADHD
• Depression
• Metabolic diseases such as thyroid gland diseases, diabetes, and lung, liver, or kidney failure
• Alcoholism
• Vitamin B-12 deficiency
• Infections
• Drugs, both prescription and over-the-counter

The good news is, causes of memory loss from many of these conditions are normally reversible. Zola says depression and stress are the most common reasons for temporary memory problems.

“If your encoding isn’t good, you’re not going to get the information in properly, and so you’re going to have difficulty retrieving it because it isn’t there in good form to retrieve. So that’s the kind of memory problem associated with depression, or with attention deficit disorder, as its name implies, you have trouble paying attention and focusing.” Stress affects the way the brain processes memory, Zola tells WebMD. “So it’s not so surprising that you have memory problems often during very stressful states because part of the brain is not engaged in the way it needs to ordinarily be in order to have good memory.”

To be continued in our next article entitled, “Is Your Memory Normal?  Use it or Lose it!  Ways to Cope With Memory Loss”.

By Cherie Berkley, MS
Reviewed by Louise Chang, MD

Almost any decision an employer makes that is premised on an employee’s race that adversely affects the employment of an employee creates a viable cause of action for race discrimination.
 
Federal law (as well as many state laws) prohibits employees from being subjected to harassment because of their race (the use of racially offensive language / innuendos and graffiti).  It is also illegal if an employee is terminated, demoted, not advanced within the company, or not hired because of his or her race.
 
Federal law extends protection to every race to prevent such unlawful practices. 

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on race or color, or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII of the Civil Rights Act of 1964.

There are basically two kinds of sexual harassment recognized by federal law:
 
(1) Hostile-work environment sexual harassment - This kind of harassment occurs when an employer or agents of the employer (manager or non-manager) subject an employee to unwelcome sexual behavior (physical or verbal).  A hostile work environment can exist if the unwelcome actions are severe or pervasive. 
 
(2) Quid pro quo sexual harassment - This kind of harassment occurs when an employer or agents of the employer place terms and conditions of an employee’s continued employment on the return of sexual favors. 

Sexual harassment can occur in a variety of circumstances, including but not limited to the following: 

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
• The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
• Unlawful sexual harassment may occur without economic injury to or discharge of the victim.

• The harasser’s conduct must be unwelcome.

It is usually helpful for the victim to inform the harasser directly that the conduct is unwelcome and must stop. The victim should generally use any employer complaint mechanism or grievance system available.

Generally, at-will employees can be fired for any reason or no reason.  There are several statutory exceptions to the at-will employment rule though.  For example, at-will employees generally cannot be terminated because of their age, race, sex, religion, disability, for taking a qualified medical leave, for objecting to a polygraph test as a condition of employment, for serving on a jury, for fulfilling military duties if employed by the military, or merely for having a criminal conviction. 

A. Contracts

Employees may also have legal recourse if they had a contract for employment that was breached by their employer (or are part of a union).  Even in the absence of an express contract, there are rare occasions when an employer’s handbook (or other documents) may create contract rights.
 
B. Public Policy Exceptions

Employers are not permitted to terminate employees if the termination will violate important and established public policies.  For example, state and federal employees cannot be terminated for making or refusing to make certain statements of public concern.  In many situations, it is also generally illegal to terminate or punish an employee for seeking worker’s compensation or unemployment compensation, for reporting safety violations in the workplace, and for refusing to engage in or commit a crime.
 
The above information does not represent an inclusive or a complete list of grounds for wrongful termination.  Many state laws, such as New Jersey’s Conscientious Employee Protection Act, provide far broader protections to at-will employees. 

Finally, a state getting serious about a doctor with a history of inadequate care.

The board of medicine in Boston, Massachusetts has suspended an ob-gyn with a alleged history of serious malpractice complaints, calling her an “immediate and serious threat to public health.” Dr. Suzanne B. Rothchild’s medical license was suspended after the board reviewed nine cases that alleged inadequate care by her.  According to court records. Rothchild has been accused of medical malpractice 12 times since 1993.