Stoughton / Canton Area Personal Injury Lawyer - Nursing Home & Elder Abuse

Reverse Mortgage Abuses

Bruce Bierhans — Fri, 09 Oct 2009 16:37:11 GMT

What a surprise! An article in todays SanFran Chronicle reports that reverse mortgages have "the potential to spawn another subprime-style financial crisis." This, according to a report released by the National Consumer Law Center in Boston.

The report discusses "aggressive marketing tactics" that pressure elders to use RM loan proceeds to purchase other potentially inappropriate financial products, such as annuities, and even things such as luxury items.

A reverse mortgage permit homeowners over 62 to receive a lump sum, periodic payments or credit line checks. The borrower doesn't make mortgage payments, but interest and fees accumulate over the life of the loan and the loan must be paid when the borrower dies, sells or leaves the home for more than one year. The interest compounding feature can be quite a problem. The article discusses the story of one woman that learned, when she went to refinance her home, that she owed over $600k on a home that was worth only $120k. She had only received $120k in payments on the loan.

The state of California has legislation pending that would establish a suitability checklist for reverse mortgages. The NCLC report recommends that anyone that arranges a RM establish that they are acting in the best interest of the senior.

As in all matters, you are your own best guardian. Of course, a responsible attorney can guide you through the decision making process. Borrowers beware!

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

The Crime of the 21st Century? Elder Financial Abuse

Bruce Bierhans — Thu, 16 Jul 2009 09:31:22 GMT

On the heels of our Harwich elder securites fraud case:

Fred Joseph, president of the North American Securites Administrators Association has described elder financial abuse as "the crime of the 21st century". A column in todays Washington Post by financial writer Michelle Singletary expands upon the comments.

The typical victim? A 75 year old woman living alone (what a surprise!). Typical scams?

Forging signatures on legal instruments; promising lifelong care in exchange for money or property; using credit cards without authorization, and con men involved in scams by gaining victims trust (in the Harwich case, our conman desribed his involvement in his church at length).

The article also describes certain red flags to watch for as fraud alerts. See www.na-saa.org and search for "Senior Investor Resource Center".

By way of update on the Harwich case. Positive negotiations are progressing.

Bruce A. Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Cleaning Off the Desk/Elder Care Issues

Bruce Bierhans — Tue, 21 Apr 2009 12:54:30 GMT

A very busy two weeks in and out of court has kept this erstwhile blogger off the Internet. However, while cleaning up the desk and catching up on this nice Friday, I was surprised to see how much I deal with lately involves elder care issues. Some examples:

The ongoing case of the woman bilked out of 1mill by a financial adviser she met at a senior center;
Two cases involving the abuse by the parents children of the parents' Durable Powers of Attorney. Apparently, the children think their parents' money is there for their own use, while Mom and Dad are still alive and kicking, but disabled. I am just beginning to see these types of cases.
A completely wacky case where the attorney Executor has filed claims against a child beneficiary for making gifts from her mother's estate while Mom was still alive and directed that the gifts be made. I'm not sure what's wackier, the case itself or the lawyer;
There's always the nursing home matters. Falls, abuse and, of course, nursing homes chasing after the kids for payment.
Continuing with the nursing home string, this week there was the "oops, I gave your Mom the wrong meds" case.

Well, with an aging population, I guess I need not worry about there being enough work out there to keep me busy. Of course, I can also wait for the next mortgage scandal to come along.

- Bruce Bierhans

Originally posted at InjuryBoard by Bruce Bierhans

Nursing Homes and Predatory Litigation/Your Home Isn't Safe!

Bruce Bierhans — Sat, 21 Mar 2009 18:36:19 GMT

CAUTION: TRUE STORY AHEAD! In 2003, a mother and father in Stoughton conveyed their modest home to their two sons and retained a "life estate" (a right to live in the home until their deaths). The father, then in his mid sixties, had diabetes, but was otherwise healthy and engaged in his usual daily activities. He was a retired machinist from Portugal that had worked hard his entire life. The family was a bit behind on their taxes, but otherwise had no debts. When the home was transferred, one son moved into the house and became responsible for it's care and upkeep and also paid the mortgage.

Three years later, in 2006, the father had an acute diabetic episode and had half of one leg amputated. He had to enter a nursing home.

At the time of admission, an Admission Agreement was signed which made the father responsible for his nursing home bills and made his son "responsible" for using the FATHERS assets to pay those bills. However, the sons assets did not have be used to pay those bills, nor, the Agreement said, could the son be held responsible for those bills. Remember, by that time, the son had owned the home for almost three years. Ultimately, some bills were paid by Medicare and there ended up being a dispute as to whether or not MassHealth would cover some of the fathers bills. As a result, there ended up being a disputed bill in excess of 100k before the nursing home booted the (one legged) father out of the facility.

Guess what? In 2007, the nursing home sued the mother, father and both sons, alleging that the 2003 transfer of the home was a "fraudulent conveyance" which should be reversed so that the house could then be attached by the nursing home and the sale proceeds used to pay the bill. I represented that family and defended by arguing that the transfer was a perfectly legitimate transfer when made and that there was no expectation, at that time, that the father would require nursing home care three years later.

We completed the trial of the matter this week in Dedham, Ma. After the close of evidence, the trial judged dismissed some of the nursing homes case, but has not yet ruled on the "fraudulent conveyance" claims of the nursing home.

This case, and cases like it, should be a great cause for concern. This transfer was similar to thousands of such transfers that occur every day between family members as legitimate "estate planning" measures. Now; not only do families have to contend with the Medicare "look back" period, but also have to be afraid of whether or not a nursing home will prey upon them and allege that what they did was a "fraud." Defending such an action also results in the family incurring thousands of dollars in unanticipated legal fees. Even though I reduced my fees for this family, the defense and trial have been time consuming and the costs have been substantial.

I will report on the results when received. However, this case illustrates how, more than ever, planning for the future by families should occur well before a problem arises or health care concerns exist. By then; it may be too late.

Originally posted at InjuryBoard by Bruce Bierhans

Nursing Home Inspectors Restricted by Last Minute Bush Regulation

Carrie Strasser — Thu, 26 Feb 2009 18:02:31 GMT

Efforts are already in the works to overturn a late-term regulation issued by the Bush administration in September. A report on Bloomberg explained that this new regulation designated state inspectors, Medicare and Medicaid contractors as federal employees. This rule affects approximately 16,000 nursing facilities nationwide and is forcing plaintiffs with potential personal injury actions, and the defendants opposing them, to take painstaking efforts to obtain information.

Federal employees are groups usually protected from providing information to either side in private litigation and litigants may need to seek court orders to get vital discovery information. Eric M. Carlson, an attorney with the National Senior Citizens Law Center, explained:

Government inspectors have the right to go into nursing homes and investigate, and they learn things that residents and families otherwise could never find out.

The new regulation prevents these state inspectors from becoming involved in private lawsuits implicating facilities in the federal assistance program unless they have prior approval by the head of the Health and Human Services Department.

This regulation was put into place under the guise of promoting efficiency by these newly designated federal employees in their everyday tasks.

Requests for these employees to participate in private cases "divert employees from their federal survey, certification and enforcement responsibilities," the Bush administration said in a supporting document. "The cumulative effect of these requests can impede these activities."

Nursing facilities also feel the strain from this new regulation. An official from the American Health Care Association explained that nursing facilities are restricted from obtaining information from these inspectors regarding penalties, citations and orders to shut down nursing homes.

Originally posted at InjuryBoard by Carrie Strasser

Nursing Home Ratings

Bruce Bierhans — Sun, 04 Jan 2009 12:42:46 GMT

Believe me...when I wrote my last post on Nursing Homes in my Cape Cod Barrister blog on Cape Cod Today, I had no idea that nursing home grading would be the headline story in the Cape Cod Times just a few days later. Perhaps my timing is so good, I ought to buy a lottery ticket!

In any event, what do we learn from the study conducted by the HHS Centers for Medicare and Medicaid Services?? As for Barnstable County, we learn that 45% of homes were ranked "above average" and 33% were rated "below average". On Cape Cod, 17% of the homes received the lowest coveted (tongue planted firmly in cheek) one star rating, compared with 14% statewide. Although Norfolk County received the lowest percentage of one star ratings, that happens to be the county where many of my cases to date have originated. In this county, how do you feel if your Mom or Dad is in one of the one star facilities or one of the 33% that were rated below average. Probably not warm and fuzzy.

What do these statistics tell us. Not much really, other than the fact that, as I have stated previously, due diligence and monitoring your family members care is paramount. Tragedies can occur in the best and worst of homes. For example, let me give you a brief rundown of the types of cases we have handled on behalf of client families. These will give you a beginning primer on what to look out for. Some of these cases have occurred in homes that were high end and sparkling.

a) Development of bed sores and other ulcerative conditions and the failure to treat the conditions when they occur;

b) Falls, frequently multiple falls, resulting in serious injury or death. This is the most common type of case we have handled. Patients "at risk for falls" are supposed to be assessed upon admission and closely monitored thereafter, with assistive devices, i.e lap buddies with wheelchairs, to prevent falls.

c) Failure to administer medication or actual overdosing of the patient. Again, a situation that results in serious injury or death;

d) Assault and Battery and theft. Yes, patients can be physically and emotionally abused behind closed doors. In addition, we have seen multiple cases where there is a theft of personal property.

Nursing homes are subject to a myriad of state and federal regulation because of their receipt of federal and state funds. The maze of regulations and payment options can be confusing to the best and the brightest. However, your first course of action is to be informed and to be an aggressive advocate for your family member. I will talk in later posts about some of these issues with more specificity.

Originally posted at InjuryBoard by Bruce Bierhans

Nursing Home Neglect

Bruce Bierhans — Thu, 04 Dec 2008 14:22:24 GMT

We are seeing an increase in calls from individuals complaining about the care and treatment received by family members in nursing homes.

We are hearing horror stories about bedsores, falls, broken bones, physical abuse, theft and emotional abuse. Many calls involve homes in which you would not expect such incidents to occur. Even when family members are actively involved in patient care plans and communicate with nursing home supervisors, neglect may still occur.

Our office has handled many of these cases and have a resource network of experienced nurses and physicians, some specializing in geriatric medicine, that assist us in evaluating these cases. When you have questions to be answered, we are there to help.

Originally posted at InjuryBoard by Bruce Bierhans